[Diana Wallis | European Network for Mediation | Sofia 2012]
Thank you so much for inviting me to this important conference of the European Network for Mediation. It is a real pleasure to be here with mediators from all around Europe and I look forward to sharing some thoughts with you.
I am forever and constantly struck by the need for mediation. Although no longer an elected politician I still receive heart rending e-mails detailing ‘constituents’ problems with the traditional legal system; tangled tales leading to an obsession which is destructive of life and health.
I saw only the other week in my own area an important old established business that has been fighting to survive, although there was hope of an international partnership or takeover. Sadly the talks failed at the last hurdle and this failure of a huge international take-over (and this case was not unique) put many local jobs, livelihoods and families in trouble. I could not help thinking that there had to be a place for mediation in these discussions. It could not be that the parties were so far apart; there was much at stake for both sides.
The human cost of bad dispute resolution is immense, let alone the pure financial cost.
Then we have lawyers! There was a lead article in this week’s Law Society’s Gazette which goes to all practising solicitors in the UK which had the headline, “Aggressive Lawyers ‘harm Mediation’”. Sound familiar? This was a comment by Bill Wood, Chair of the Civil Mediation Council, describing how lawyers act up in mediation, are more aggressive than their clients, tear up offers, refer threateningly to their belligerent reputation and indulge in other such histrionics.
In the early summer of this year I undertook formal training to become an accredited mediator with CEDR in London. There were somewhere between 20 to 30 participants on my course of which all but two or three were lawyers. This may not necessarily be a bad thing. The hope should be that we may encourage a new breed of lawyers, rather than that lawyers claim mediation for their own and ‘adversarialise’ it.
But I have another observation from my several months of deeper connection with mediation, of becoming one of you, it is this (and not everyone will like what I am going to say). There is a lot of talk about mediation and a lot of mediation training but I am not sure that there is a whole lot of actual mediation going on. Or if there is, which I doubt, the general public certainly doesn’t know about it. Indeed instead there is rather evidence that we are seeing a more litigation orientated society. People are quick to accuse, quick to claim compensation. At home, as I am rather more at home now, we can receive anything up to 3 or 4 phone calls a day offering to claim various things on our behalf – although mainly at the moment miss-sold PPI. Now claiming may not be bad, as it can be a good sign of increased awareness of rights and the availability of access to justice. However what is important is how the claims are dealt with and settled – and whether or not mediation is an option.
Now I have also encountered the problem of recognition or understanding of what mediation is. If I thought many people didn’t know what an MEP did, even more don’t know what a mediator does. It is variously confused with a medium, something to do with talking to the spirit world or meditation or maybe something to do with marriage guidance. The public know what a lawyer is. They do not know what a mediator is.
There can be no doubt that the EU directive on mediation has provided a much needed framework. A good start to further development, but there is also no doubt that we have to be looking for how to build on this and for what comes next.
I spent twelve years in the European Parliament talking about mediation. Sometimes things seem to move so slowly! If we look across the Atlantic we are now more than quarter of a century from the Pound Conference, often regarded as the starting point of the contemporary discussion about mediation, that should be sufficient time for tangible a progress. It now needs action, built on the experience of these years.
Having made a good start what can the EU do next? Of course again some will argue it is early days only just eighteen months since the final implementation deadline. Yet we still have a lot of post directive information already available to assess where new effort should be focused. There can be no doubt that we currently have an EU Justice Commissioner, Vivienne Reding, who is sympathetic, even on occasion quite passionate, about mediation. Mediation does of course fit well into her so called ‘justice for growth’ agenda; it has a place it combating the economic crisis and dealing with the aftermath of the same. However, we need to be aware that we are entering into the last eighteen months of this Commission mandate. We have to point out achievable goals.
Of course, it goes without saying that checking-up and analysing the implementation of the directive should be the first action point. Also it seems to me this gathering is huge opportunity to input into Commission thinking. We have gathered here mediators with on the ground experience from around Europe, so it would be good to consider an outcome perhaps a mini resolution from the meeting. It maybe the former politician in me – but such an opportunity should not to be missed.
Possible action points might be: firstly, information and publicity about mediation; going beyond encouraging Member States in their information duties as encouragement is not enough. It maybe that the new directive on ADR and regulation on ODR will do slightly better, they seem to talk of ensuring at least this is somewhat stronger, if it this type of wording survives the final hoops of the legislative process.
Then should – could – the EU try to enforce more mediation? Certainly the mandatory Italian method is fraught with difficulty and legal challenge, but maybe there is room for some sort of criteria of the optimum percentage of disputes mediated as opposed to litigated, the so called ‘balanced relationship’ actually present in the Directive, but of course this too is open to interpretation (I hope, indeed know we will hear more of this later).
Maybe also the EU could help provide the catalyst towards bringing the profession together at an EU level, so that it could speak with a common voice issues such as professional standards and training. This cannot be done by mediation provider organisations. It must be like the European Bar Council i.e. an organisational grouping of, or for, and by, national professional organisations. With EU wide professional representation and recognition would come hopefully come clarity about freedom of movement rules for professional mediators, which is desperately needed. Most importantly there should be a clear European voice able to articulate the views of the profession for the benefit of the public and greater access to justice across the EU.
There is something else, something very simple which the EU as legislator could do. I would call on the Commission in every civil or commercial law instrument it puts forward that deals with EU justice to include provisions for mediation or ADR. So in proposals relating to contract law, defamation, collective redress whatever, particularly in horizontal instruments like e-justice, and yes, judicial training get mediation in there. It should be a habit, an automatic reaction. I seem to recall I did it in all the last reports I authored in the EP and it was not conscious, nor should it be.
The EU needs to help sell mediation and if I can put it this way the mediation method, almost a lifestyle, as opposed to the fast developing litigation culture.
The EU has so many synergies with mediation: it is borderless, without frontiers, more able to cross the boundaries of national legal cultures, and able to deliver greater access to justice across the piece.
The EU is itself in many ways evidence of a direct manifestation of mediation in its full sense of being the antithesis to conflict. The recent award of the Nobel Peace Prize confirms this. Mediation is intrinsic to 21st century European values. It is a part of the European Union DNA.
If, as Europe, we are looking for a new narrative this could be it: the birth of a new mediation culture.
Diana Wallis | Sofia 2012