In 2018, 12,000 civil and commercial mediations took place in the UK (according to the Centre for Effective Dispute Resolution’s Eighth Mediation Audit), with many of them conducted by practising and retired barristers. Since the UK Government used its 2001 Government Pledge to announce it would be embracing Alternative Dispute Resolution (‘ADR’) and mediation, many advocates have become adept at moulding their traditional courtroom skills to better serve their clients at mediation.
Here’s what we learned:
Mediation has a place in most areas of practice…
It’s most commonly associated with commercial disputes, but it is easily applicable to those arising out of employment law, personal injury, family matters and professional negligence. Most recently, the NHS has launched a Claims Mediation Scheme designed to support patients, families and NHS staff in working together towards the resolution of incidents, complaints, legal claims and costs disputes, which likely explains why 25% of those in attendance were medical practitioners.
…but it isn’t always the answer.
With an aggregate settlement rate of 95% either during or shortly after the mediation, this form of ADR is clearly a successful one. However, with 1% of mediated cases ending in court and 4% being abandoned it doesn’t always have the desired results.
Mediation is all about active listening…
It’s a cliché but this soft skill really is king. It also presents a challenge for barristers, the majority of whom have spent their careers advocating on behalf of their clients. Learning to listen for 95% of the time and ask only open questions for the remaining 5% really does pay dividends; it helps participants to identify their interests and reach a solution that, at worst, they can live with.
… and independent and neutral facilitation.
As a non-evaluative mediator, you are there to find out what motivates the participants and to provide them with an opportunity to hold productive conversations. You are taught not to offer advice, either legal or otherwise, or to encourage any of the participants to decide upon a course of action or settlement; again, a challenging skill for a barrister.
Learning how to mediate is an enjoyable experience
Most of the course focuses on the practicalities of mediation and, as such, your ability to successfully mediate. Every good trainee requires an array of situations in which to practice and we therefore spent much of the week role-playing; something which every participant threw themselves into and found thoroughly amusing!
The benefits of mediation are many and, with advance receipt of payment and certainty as to working hours and conditions, it’s no wonder that becoming a qualified mediator is a common objective for those seeking to develop their practice at the Bar.
If you’d like to join the ADR revolution, then look no further than the Bar Council website.
Authored by the Bar Council’s Head of Services, Carolyn Entwistle, and Policy Analyst, Stuart McMillan.