It is not disputed that the civil justice system is not, in its current state, meeting the needs of the public. With long court backlogs and high legal costs in litigation, the need for alternative dispute resolution is more pertinent than ever and the modern Bar lies at the heart of it.
In this blog policy analyst Nell Ferrall summarises the thoughts of a recent panel discussion that included members of the Bar Council’s Alternative Dispute Panel (ADR) on how and when evaluation beyond the court room might assist parties in resolving a dispute and in turn, achieve quicker, more affordable justice.The evening, hosted in partnership with Keating Chambers, opened with a keynote address from former Chair of the Bar Council, Sam Townend KC, who advocated for the use of evaluative mediation, when appropriate, to assist parties in reaching resolution quickly and efficiently. He went on to say that:
“Evaluative mediation [...] directly presses parties to assess with realism the strengths and weaknesses of their case, particularly where there is a significant legal or technical component, guiding them to a settlement position that is reasonably likely broadly to reflect the outcome of a final litigated determination, but without the time, effort, emotion and cost associated with a trial”.
Read Sam’s full keynote speech.
Market change and evolving practice
In a poll from the event, the majority of the attendees said that in the last 3 to 5 years the need and demand for evaluation in ADR has increased. Panel member John Pugh-Smith said that demand has evolved and the market has become more sophisticated, requiring mediators who add value as well as stressing the cost benefit of mediation to resolve disputes. The panel emphasised the capability of mediation to be both creative and malleable to parties’ needs. Whilst a “one size fits all” facilitative approach to mediation has been used successfully in the past, it is not uniquely useful and mediation can also be capable of adapting to the market and parties’ wants and needs – who right now, are asking for greater evaluation.
In comparative jurisdictions, panel member James Bridgeman KC described the expectation in the Irish courts for mediation. The decision in Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416, indicates England and Wales are heading in the same direction.
Boundaries between facilitation and evaluation
Event attendees also indicated the line between facilitation and evaluation was increasingly blurred. This should not ignore the potential risks with evaluation. James Bridgeman SC, identified that in evaluation there is a risk in a mediator becoming an arbitrator which in some circumstances can be dangerous.
Neutrality and ethical boundaries
Inherent in a good mediator are qualities of fairness, equality and impartiality. However, the question of whether a mediator, or anyone for that matter, can be truly neutral was challenged by panel member Andrew Parsons. Unconscious bias and ingrained attitudes determined by environment, upbringing and experiences may affect understanding, actions and decisions without conscious awareness. Many biases, he argues, are unrecognised and are therefore the most dangerous. One of the ways to become a better mediator is to recognise this fact, because as soon as those biases are realised, the sooner they can be safeguarded against. With this in mind, can there ever be such thing as an entirely neutral mediator?
The panel discussion also underscored the importance of selecting the right neutral evaluator for the right dispute. The Bar Council’s Appointment Service offers a trusted route to identifying experienced and independent barristers acting as mediators, arbitrators, neutral evaluators and in other ADR roles. The service supports parties and practitioners across a wide range of dispute types and practice areas, helping to promote confidence, neutrality and effective outcomes in dispute resolution.
Mediation as a moving
The panel identified emotional intelligence as fundamental to the effective use of evaluation within mediation. The ability to read the room, understand parties’ emotional responses and recognise shifts in tone, engagement or resistance allows mediators to effectively adapt their approach in real time. This includes knowing when evaluation may assist progress and being able to adapt it to the needs of parties.
While barristers should acknowledge that mediation practice can be demanding, its expanding role within legal practice is increasingly clear. Developing these skills, the panel suggested, might not only improve outcomes in mediation, but also enhance a barrister’s effectiveness as an advocate.
Nell Ferrall is a Policy Analyst for Legal Practice and Remuneration at the Bar Council, and also serves as the executive for both the Alternative Dispute Resolution Panel and Direct Access Panel. She is also a qualified barrister and solicitor of the High Court of New Zealand.