Sir David Foskett's Introductory Remarks, London Mediators Day 2019

This is the text of Sir David Foskett’s introduction to London Mediators’ Day 2019, which launched Mediation Awareness Week.

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It’s a great pleasure to be here and I am very grateful to John Allison for the invitation to take part in today’s event.

When I clicked on the link John sent me to the day and to the gallery of photographs for last year’s Mediators’ Day, my eye caught various photographs of my illustrious predecessor as Chair of the CMC, Alan Ward. Those of you who were there, or who otherwise know him, will appreciate that he is an impossible act to follow so I won’t attempt to do so. What I can say with complete conviction is that I share his enthusiasm for mediation and it has and will continue to have my wholehearted support in whatever form it comes.

Alan and I will have come to mediation through our respective experiences in the world of litigation. I will spare you my full autobiography, but, in a nutshell, I started out as a young barrister anticipating enthusiastically the gladiatorial courtroom contests that I had seen on television and read about in the biographies of the great advocates of their day.

However, I soon appreciated that the majority of people wanted to settle their dispute without going through the full and somewhat uncertain court process. So I spent quite a lot of my time negotiating settlements with my opponents. Independently of that I found myself being asked to advise in a few cases where something had gone wrong with the settlement that had been made in the past. I could find little in the practitioner’s books at the time to help in giving this advice. That led to the writing of the book, first published in 1980, that now bears my name and which will shortly be appearing in its ninth edition.

I got involved in the planning of Lord Woolf’s civil justice reforms in the mid-to-late 1990s and it was then that I really first became aware of mediation as one means of ADR, something very much encouraged in those reforms, largely, it has to be said, to get cases out of court when the court lists were overcrowded.

I trained as a mediator some 17 years ago and indeed, in addition to my practice at the Bar, acted as a mediator in a fair number of cases in the few years before my appointment as a judge. In my nearly 12 years as a judge I encouraged parties to litigation to consider mediation whenever it seemed appropriate, but, of course, I was not able to act as a mediator during that period. Following my retirement as a full-time judge earlier this year I have returned to the dispute resolution process in a non-judicial capacity, mediation being at the forefront of that.

So that’s a whistle stop tour of my background. I have to be completely open and say that, in the early days and before I undertook the training, I was rather sceptical about the mediation process, thinking, as I suspect many lawyers would think, that there were structural weaknesses within it. However, I overcame that scepticism, made the process work myself and saw that the weaknesses I had thought existed in mediation in fact constituted its strength. The flexibility of the mediation process enabled it to be adapted to the particular dispute, the particular parties and the dynamics of the particular situation.

But, of course, my experience of mediation has essentially been in the civil and commercial litigation context. I have been aware of, but have had no direct experience of, workplace mediation, family mediation or community mediation. One of the happy spin-offs of my invitation to be here today is the opportunity to learn something about community mediation from those who plainly have considerable experience of it. I am very grateful for that opportunity.  I might say that my education in these unfamiliar areas is continuing apace: it was my good fortune to be able to attend an excellent workshop in Central London on Thursday, sponsored by the CMC and organised by Caroline Sheridan, about workplace and employment mediation.

I recognise that community mediation embraces issues far wider than merely boundary or neighbour disputes, but I do remember clearly from my early days of practice that those were the most intractable of disputes and rarely, if ever, could one find the basis for a compromise. Usually, of course, by the time a barrister got involved in such a dispute, the parties’ positions had become so entrenched as to be incapable of easy unravelling.  Now there is a great deal of encouragement for parties to disputes of that nature to seek community mediation.  That is a major step forward.  However, as I say, I recognise that community mediation is a tool used in many different contexts of which disputes between neighbours is merely one.

The overall context of today’s proceedings is the excellent work carried out under the auspices of the LCMC by its constituent community mediation service providers across, as I understand it, 24 of the 32 boroughs of Greater London.  Given the crowded nature of residential areas and accommodation of all kinds around London, the busy streets and roads, and the regrettably confrontational attitude of many people when faced with an irritating something or someone, the need for this kind of mediation, provided by reputable, trained and skilled mediators, is obvious.

Whilst our focus today is on what is done in an around London, the CMC is, of course, an organisation with interests and members across the whole of England and Wales.  As a relative newcomer to the world of community mediation, it has been interesting for me to discover, simply through online searches, the extent to which community mediation is a facility offered in many areas across the country, not just in the over-crowded City areas.  The need for this kind of mediation has plainly been identified.  Whether the need is fully met is something about which currently I know little.  Bearing in mind the resource issues relating to publicly-funded initiatives generally of which we are all aware, I rather doubt it.

There is one other feature of the picture I should like to mention briefly before the much more important business of the day gets under way.  For various reasons, over the last 18 months or so I have spoken on dispute-resolution issues in a number of places outside our own domestic jurisdiction.  For example, I have given talks on these kind of issues in Singapore, Hong Kong, Malaysia and parts of the US.  One learns that what we may perceive to be issues we have to face alone in the UK are faced throughout the world in similar, albeit, not identical ways.

Most recently, my wife and I took a holiday with friends in New Mexico.  That I was going there became known to one of the local Supreme Court Judges and I was invited to speak to the New Mexico First Judicial Bar Association in Santa Fe.  For the insomniacs amongst you, the text can be found on the CMC website!

But the point of the story is simply this – when researching on the issue of mediation provision in that part of the world in preparing for the talk, I discovered the role that a form of mediation plays in the reservations of the Native Americans.  Since we were proposing to visit – and indeed did visit – some parts of the Navajo nation whilst there, this was of particular interest.

An early draft of the talk made reference to it, but I had to excise it in the interests of time.  Obviously, the way the process operates depends very much upon the tribal traditions of the particular group and certainly some forms of the process focused principally on what would be called “restorative justice”.  However, the resolution of other conflicts also figured.

One that I came across in an article by Jessica Metoui in the Journal of Dispute Resolution in 2007 was the “peacemaking circle”.  I commend the article to you if you are interested in pursuing the subject[1], but it describes the process as combining “traditional Native American philosophies of justice with modern alternate dispute resolution methods”. It says that the peacemaking circle process “incorporates components of interest-based negotiation, mediation, and consensus building”.  The article quotes another author who says that the “goals of the peacemaking circle, much like the goals of restorative justice are ‘to restore dignity, to bring peace to the parties involved, and to sustain community health by repairing relationships damaged in conflicts’.”

The societal values and the physical landscape in which those objectives are sought to be achieved in those parts of the US where Native Americans reside are doubtless very different from those in the London Boroughs where the community mediators present today operate and, lest there is any mischievous reporting of what I have just said, I am not advocating peacemaking circles there.  However, we all have much to learn from each other and we should never shut our eyes to the way others go about resolving conflict.  I venture to think that the objectives referred to in the passage I have quoted are objectives we will all, of necessity, be pursuing over the next few years.

I am delighted that the CMC is increasing its engagement with community mediation across the country and also to be able recognise on its behalf the important role that John and the LCMC are already playing in this field in London.  John, on behalf of the LCMC, is joining a number of others including the CMC, the Family Mediation Council, the College of Mediators and ACAS in what has been called the All Mediation Forum.  It is a body essentially recommended by the Civil Justice Council ADR Working Group in its Final Report in November last year.  Paul Adams, the Chief Executive Officer of the CMC, has taken the initiative in bringing these various parties together so that where there is common ground between the various organisations about things to be done or the way forward, we can speak with a united, collective voice.  Too many voices directed towards the powers-that-be can sometimes be counter-productive. We held an initial meeting a couple of months ago and hope to meet again before too long.

It’s time for me to go quiet and for others to take over.  My renewed thanks for the invitation to be here and my thanks to all of you for listening to me.  I will, I am sure, be much better informed by the end of the day about what community mediation means in this region than I am at present.

[1]              Jessica Metoui, ‘Returning to the Circle: The Reemergence of Traditional Dispute Resolution in Native American Communities’, 2007 J. Disp. Resol. (2007) – https://scholarship.law.missouri.edu/jdr/vol2007/iss2/6.