Clark: New board will be a major step forward
The Civil Mediation Council (CMC) is creating an independent regulatory body and applying for a Royal charter in a bid to drive up standards in the profession, it has emerged.
The news came as the Ministry of Justice (MoJ) said last year’s Churchill ruling had generated interest on the bench for judge-led mediation.
Mediation is not a reserved legal activity and there is no compulsory regulation of practitioners.
Addressing last week’s Westminster Legal Policy Forum conference on dispute resolution, CMC chair Rebecca Clark outlined how mediators wanting to join the council already have to meet competence standards and then follow a code of conduct and be subject to its complaints and discipline processes.
“Although voluntary, the CMC’s rules of membership and professional standards are robust and comprehensive and are regularly reviewed,” she said.
The 900-plus CMC members must also complete continuing professional development and have professional indemnity insurance cover of not less than £1m.
The CMC now has an independent complaints process with a lay chair and members, which to date has dealt with seven complaints – two relating to the same member. Three of the complaints resulted in the mediators having their membership status removed due to “serious breaches of confidentiality and dishonesty”, she said.
Ms Clark said the CMC was now in the process of setting up the Mediation Standards Board, a move modelled on the Family Mediation Standards Board, whose responsibilities were delegated by the Family Mediation Council.
“This board will advise and develop standards for mediators, mediation trainers and organisations under its remit.
“The board will be independent from the main CMC board, will have its own independent chair and will take over the existing work of the CMC’s registration and standards committee and its independent complaints process.”
Within this may be a standalone board focused on setting standards for mediation either integrated into the court process or directed by the court.
Ms Clark said the CMC has taken on “additional duties in relation to standards beyond civil and commercial mediation” over the years, including workplace, community, special education needs and peer mediation.
“The standard setting elements of these functions will come under the new umbrella of the new Mediation Standards Board… This is a major step forward for the integration of all types of mediation except family under one roof.”
She added that the CMC would shortly be publishing standards for community mediators and peer mediators.
Royal charter status would have “an important regulatory effect”, Ms Clark went on.
“The CMC understands that getting the charter wouldn’t prevent unqualified mediators holding themselves out as mediators, but it will encourage mediators to register, not least because those who were not registered with a chartered organisation would inevitably be much less likely to be selected by the public.”
Kim Wager, head of dispute resolution policy at the MoJ, told the event that an increase in dispute resolution outside the court was “potentially a high prize for civil justice” but awareness, particularly among litigants in person, remained very low.
This is why mediation is becoming mandatory in some money disputes worth less than £10,000 filed from 22 May; the free one-hour telephone mediation will initially apply to claims brought on paper or through HM Courts & Tribunals Service’s traditional online systems.
It will be extended later this year to cover sub-£10,000 claims submitted through the Online Civil Money Claims service.
The MoJ has estimated that 92,000 cases annually will be referred automatically to mediation, potentially freeing up 5,000 sitting days a year.
Ms Wager said some had warned that mandating mediation would not work. “We are going to monitor this very closely to see if the settlement rate dips below the level of voluntary settlement, which currently stands at around 52%.”
Looking at the wider picture, the MoJ “very much” welcomed the Court of Appeal’s Churchill ruling, which held that a court could lawfully stay proceedings for or order the parties to engage in non-court-based dispute resolution.
“The senior judiciary has been very encouraging and, if this practice is widely embraced across the judiciary, it could prove a better mechanism to ensure the engagement of parties and drive up the uptake of this dispute resolution than a blanket mandate approach,” she said.
Ms Wager said judges in some courts were also referring certain types of claims to mediation, citing a judge in Bedfordshire who was doing it for home improvement disputes. He has established an informal relationship with two mediation providers as well as the Royal Institution of Chartered Surveyors to make it work.
“We haven’t ruled out mandatory referral to mediation for higher-value claims in the county court… It seems to work well in Ontario in Canada. They have had it in place for over 20 years now for all cases.”
The official said Churchill has “also spawned greater interest by the judiciary in dispute resolution hearings” – that is, judge-led mediation. “Somewhere between mediation, early neutral evaluation and conciliation to try to facilitate a resolution without a determination,” Ms Wager explained.
“The senior judiciary are very interested in that. We are aware that it happens in some of the tribunals, particularly the employment tribunal and in the property chamber of the First-tier Tribunal.”
But she stressed that the focus was more on pre than post-action dispute resolution.
“I don’t think that anybody thinks that mandatory mediation is an ideal solution, but if it is the way to drive up dispute resolution, then it may be something that governments of the future decide to do.”
Australia has had a Mediator Standards Board and National Mediator Accreditation Standards since 2008: https://msb.org.au/