Mediation

Mediation is the process whereby a third party acts as the conduit through which two disputing parties communicate and negotiate, in an attempt to reach a common resolution of a problem. The mediator may move between the parties, communicating their opinions without their having to meet or, alternatively, the mediator may operate in the presence of both parties. However, in either situation, the emphasis is upon the  parties themselves working out a shared agreement as to how the dispute in question is to be settled.

            In his Hamlyn Lecture, Lord Mackay considered three alternative systems of mediation and examined the possibility of annexing such schemes to the existing court system. One, involving lawyers advising parties as to the legal strengths of their relative positions, he rejected on the ground that it merely duplicated, without replacing or extending, what was already available in the courts. A second, based on judges adopting the role of mediators, he rejected on the ground that it might be seen as undermining the traditional impartiality of the judiciary. The third type, and the one that found most favour with him, broadened the issues beyond the legal, to explore solutions that were not available to the court. His approval, however, did not extend to financing such a system; the implication being that public money should, and does, finance the civil justice system and that any benefits that flow from a different system should be financed privately.

            In March 1998, the LCD reported that take up of the voluntary mediation procedure offered in the pilot schemes had been fairly low. As regards the pilot scheme established in the Central London County Court, a monitoring report found that only 5% of cases referred to the ADR scheme actually took it up. However, in a morepositive mode, the report did find that, in  cases that did go to mediation, 62% settled during the process, without going on to court. The conclusion of the report was that mediation was capable of dealing with a wider range of cases than might have been expected, including personal injury cases. It also found that those who participated found the process satisfying and that it led to outcomes that the parties generally found acceptable.

Conciliation

Conciliation takes mediation a step further and gives the mediator the power to suggest grounds for compromise and the possible basis for a conclusive agreement. Both mediation and conciliation have been available in relation to industrial disputes,  under the auspices of the government funded ACAS. One of the statutory functions of ACAS is to try to resolve industrial disputes by means of discussion and negotiation, or, if the parties agree, it might take a more active role as arbitrator in relation to a particular dispute.

            The essential weakness in the procedures of mediation and conciliation lies in the fact that, although they may lead to the resolution of a dispute, they do not necessarily achieve that end. Where they operate successfully, they are excellent methods of dealing with problems as, essentially, the parties to the dispute determine their own solutions and, therefore, feel committed to the outcome. The problem is that they have no binding power and do not always lead to an outcome.