What’s in a name?
Proportionate Dispute Resolution
Professor Karl Mackie, Chief Executive of the Centre for Effective Dispute Resolution talks to AJTC member Bernard Quoroll.
Q. According to their website, the vision of the Department for Constitutional affairs, (now adopted by the Ministry of Justice) for proportionate dispute resolution is one where people have access to the information and the range of services they need to understand their rights and responsibilities, avoid legal problems where possible, and where not, to resolve their disputes effectively and proportionately. Would your understanding be similar?
A. Yes and I am encouraged by the wide ranging nature of the approach taken by the Ministry but what you have described could be applied to any civil justice system. I want to argue that it is only when you start to get to grips with the range of dispute resolution techniques available and the contexts within which they arise that you become aware of the richness of choice available.
Q. Would your definition be any different?
A. I would want to avoid focusing too heavily on the idea of a single dispute resolution model, or even a resources–only emphasis – which is connoted by the use of the word ‘proportionate’. What we are really now engaging with is a shift in philosophy from fixed structures, practices and concepts of jurisprudence, towards instead a recognition of the importance of flexible, holistic approaches and ‘dispute resolution by design’. Disputes have their origins in human behaviour, by actions or inactions, communications, decisions or agreements made by individuals and organisations. A dispute may best be resolved simply by improving information and communication between the parties so that one or both can consider fresh information or evidence which might enable them to reconsider their positions. Where decisions by government agencies or local government departments are involved, it could include some form of internal or external review at arms length from the original decision taker. Even where some kind of judicial of tribunal process has begun, it could involve the use of techniques to identify facts not in dispute or as a case progresses, to encourage the parties to take a fresh look at their positions and reconsider whether being determined only as winner or loser on past events is necessarily their best option. All these options need to be considered alongside other forms of alternative dispute resolution. The challenge is how to create institutions and processes that can manage this diversity.
Q. Would you include organisations like ombudsman, complaint handlers and regulators within the definition of proportionate dispute resolution?
A. If they provide a service which helps to resolve disputes proportionately, I don’t see why not and of course many of them increasingly use mediation and other approaches as part of their own response to complaint resolution within statutory and non statutory schemes.
Q. Do such techniques have anything in common?
A. Simply a recognition that disputes and dispute resolution are multi-faceted. In the past it would have been easier to describe them as providing an alternative to state funded agencies such as courts and tribunals. In one sense that is still true but it can give the impression that techniques like mediation are less than mainstream ways of resolving disputes. Mediation in particular is now firmly established both inside and outside the formal judicial structure and receives regular endorsement by both the Government and the judiciary. In a tribunal context it is also provided for in last year’s Tribunals, Courts and Enforcement Act. I prefer to use the phrase “effective” dispute resolution though, because what matters to me is whether it works effectively and fairly in appropriate settings.
Q. What are most commonly used techniques which might usefully be described within the definition of effective dispute resolution?
A. The one most frequently mentioned is of course mediation because of its inherent flexibility, but even that term can cover a variety of techniques. Whilst the traditional picture is of a neutral person assisting disputants to resolve their differences in person, there are many variations – including online and telephone techniques, caucus or joint meeting approaches, emphases on facilitative or evaluative models. Early neutral evaluation is a variation where a third party expresses a view about the merits of a disputed matter which may or may not be regarded as binding depending on the choice of the parties. Neutral chairing of meetings can allow a disinterested party to hold the ring between the parties, either to reduce the risk of people taking up positions before they have properly heard opposing points of view, or after a dispute has arisen. Mediation can be combined with arbitration as a contiguous process in arb-med or med-arb. Conciliation may involve the conciliator making written recommendations to both parties rather than the more neutral role adopted in mediation (although here there are definition problems – conciliation is often used to refer to a low-key intervention approach, so I personally tend to avoid this word as a technical term now). The website of the Centre for Effective Dispute Resolution and its services organisation CEDR-Solve provides more information and ideas.
The important thing to remember is that the process adopted can be as flexible as the parties and circumstances require. For example it can be time limited, conducted by telephone or by video conference. Mediation can be used to narrow the range of issues in dispute, or as part of a case management approach to encourage the parties to have a more flexible but structured way of learning about each other’s cases. In short, such techniques can be utilised within and / or outside formal court and tribunal process. They can be established under the supervision of a judicial body and they can be designed flexibly to fit the circumstances and the dispute.
Q. What features do alternative dispute resolution techniques have in common?
A. I would say that many of the techniques involve:
- Pre established ground rules, but not fixed formal procedures
- Neutrality of the mediator or intervenor
- Absolute or qualified confidentiality and without prejudice status
- Voluntariness in terms of outcome and party control of outcome (there are debates on whether entry should be mandatory given the benefits of the process, and certainly current English court rules offer cost sanctions for unreasonable refusal to engage)
- The ability to consider matters beyond the immediate dispute and to consider creative solutions beyond simply identifying a winner or loser
- The potential for disputants to be more actively involved in deciding the outcome and in doing so learn about how to change their own behaviour in future. This is especially important where one party to a dispute is a provider of last resort or where an ongoing relationship is involved
- The potential to reduce the cost, time and stress involved in formal court and tribunal proceedings
Q. Are all settings appropriate? Some tribunals would argue that mediation is not an appropriate setting where entitlement is involved.
A. Clearly there will be situations where mediation or one of the techniques I have mentioned above is not the right form of intervention and I don’t want to suggest it as a panacea. But they are fewer than you might think and over the thousands of cases mediated by the Centre for Effective Dispute Resolution in the private and public sectors we have not found many circumstances where mediation or a related technique could not usefully be employed. For example mediation is already successfully used in employment tribunal cases. Mediation is now an element of special educational needs appeals. The UK Intellectual Property Office encourages mediation as part of its dispute resolution armoury in respect of patent disputes. CEDR already provides a mediation service for the Housing Ombudsman, and mediation has been adopted in some judicial review cases. It seems to me that party and party disputes provide a clear opportunity to reduce the time cost and stress inherent in court like procedures. Even where a dispute involves access to a statutory entitlement there is scope to introduce mediation into internal review processes within the decision making organisation, leaving only the most difficult of cases or those where the disputant wants to exercise a right to a hearing to go forward. Government likes to assert that it can produce clear simple rules about entitlement which can then be applied within a judicial model but the reality is sometimes different – I don’t think it is a heresy to suggest that some issues, for example where lack of repair, valuation or compensation are involved, are just as susceptible to negotiation as adjudication. Unsuitability is more often based around party intransigence or unreasonable expectations of an individual, than it is on the intrinsic nature of the substantive issues involved.
Q. It seems to me that there hundreds of tribunals, regulatory and complaint handling bodies in the public and private sectors, charged in some way with resolving disputes. Is there any advice you would want to give to them about the way they could deliver dispute resolution services and how they could be more proportionate?
A. I would say,
In deciding conflict management approaches, consider the needs of the
participants first. They want a fair outcome but don’t generally want the
stress, delay and cost which may be involved in courts and tribunals
Think
about the kinds of interventions which can be fair, cost effective and timely
and which might be applied at different times in the life cycle of a dispute –
early intervention even before an appeal is made is often best. But mediation
can have a role even at the door of the court or tribunal and can run in
parallel with other judicial processes
Develop your understanding, training
and experience in the range and applicability of the techniques available. Don’t
just think of mediation as a substitute for a formal judicial hearing. In
a tribunal context, remember that an effective process in determining hearings
does not substitute for good and responsive administration by the departments
and agencies involved. In that sense, every avoidable tribunal case could be
regarded as a failure of administrative justice as far as the individual is
concerned.
Be open to experimentation in a way that will provide sensible
feedback of what works and what doesn’t.
Q. And what would you say is the most important challenge facing policy makers in this area today?
A. I would say the most important challenge is realising how increasingly significant the question of ‘design know-how’ is in our approach to community and organisational conflict resolution, as much as it is in other consumer-focused products and services. What this means in practice is three-fold. First promoting meaningful education and awareness of the variety of techniques involved, how, why and when they work in the context of how people, organisations and societies behave. Second, building or supporting organisational structures which can combine public credibility with flexibility and ‘dispute-wise’ design sense in the adoption of techniques to manage individual grievances and conflicts – supporting ‘multi-door’ courthouses, tribunals, ombudsman offices or private sector specialist providers. Building in some form of triage, so that the parties and especially the decision makers and those who administer the system can offer effective alternatives and regularly evaluate whether they add value. Last but not least, we need to find better ways to go beyond a simple conflict resolution focus, toward enhancing conflict prevention capabilities in society. The majority of social and organisational damage from conflict, as in our health systems, occurs long before formal institutions are engaged to resolve or adjudicate conflicts – encouraging earlier effective and pragmatic intervention by courts and tribunals, parallels what we should be achieving in schools, communities, businesses and public sector organisation conflict management practice. Let’s see politicians model good behaviour in this respect first, and ensure a proportionate resource is devoted to where there are real needs!
Footnote
Karl Mackie has been CEDR's Chief Executive since the
organisation was founded in 1990. He is internationally acknowledged as one of
the leading practitioners and experts in mediation and has been engaged in
mediation practice since 1980.
A barrister and psychologist by training,
Karl is a Fellow of the Chartered Institute of Arbitrators, is on the panel of
mediators/arbitrators of the UK's statutory industrial relations service ACAS,
and holds both a PhD and MBA. He has worked in University continuing
education as well as having been a partner in a business strategy
consultancy.
Karl has been awarded an Honorary Professorship from the
University of Birmingham and is Visiting Professor of ADR at the University of
Westminster. He is Deputy Chairman of the Civil Mediation Council, has written
several books on mediation and has been described in The Lawyer magazine as one
of the top 100 most influential lawyers in the UK or more prosaically by the
in-house counsel of an international pharmaceutical company as 'the thinking
lawyer's Sean Connery'. He is a member of the Advisory Council of the
recently-formed All-Party Parliamentary Group on Conflict.