Now is the Time
THE CMC’S RESPONSE TO THE APPG FOR ADR’S REPORT
In this response the CMC examines the All Party Parliamentary Group for ADR’s Report which is the outcome of the APPG’s fact-finding mission to Singapore to discover how that country has established itself as a leading global disputes’ hub. What does this mean for the Civil Mediation Council and for the mediation profession in the UK?
We’ve recently read the All Party Parliamentary Group for ADR’s Report on “Securing the UK’s position as a Global Disputes Hub” and thought it made for interesting reading. The Report is the outcome of the APPG’s fact-finding mission to Singapore to discover how that country has established itself as a leading global disputes’ hub. Although the report focusses mainly on the resolution of commercial disputes there are certain recommendations which, in our view, can apply across the ADR sector.
Government support is key
Singapore’s success at developing itself as a global disputes’ hub and, in particular, in relation to mediation can be traced back to the institutional support given to mediation in the 1990s when Singapore Chief Justice Yong Pung How established the Court Mediation Process. In 2013 Chief Justice Sunaresh Menon setup a working group aimed at establishing Singapore as a leader in international commercial mediation; this led to the establishment of the Singapore International Mediation Centre (SIMC) in 2014. Mediation continues to grow in Singapore and, indeed, the country’s leadership in ADR is reflected in the Singapore Mediation Convention signed in August 2019. Singapore’s achievements would likely have been far harder without, as the Report says, the adoption of a ‘whole of government’ policy. It is, perhaps, this point – the need for government leadership and support – which is the most important conclusion of the Report.
In particular, Singaporean Government support for SIMC has been crucial. The Report lists the Centre for Effective Dispute Resolution (CEDR) as the UK’s equivalent to the Singapore International Mediation Centre. We are not sure that the analogy is correct – CEDR is certainly a leader in the field, but it is one of a number of mediation providers. Where the differences lie is that SIMC was set up with government and judicial support in Singapore and its mediators are certified by the Singapore International Mediation Institute. The equivalent certifying body in England and Wales, for civil disputes, is the Civil Mediation Council and we would like to see recognition of our role as the professional standards body for mediation.
A joined up system
The Report advocates a joined-up, comprehensive system for the avoidance, management and resolution of disputes and we totally agree and support this recommendation, along with the suggestion that such a system could be led by a Minister for Commercial Disputes sitting within Department for Business, Energy and Industrial Strategy (BEIS). However, we would argue that such a role should not be limited to just commercial disputes (albeit this is a good start) but that a Minister for Disputes should have a cross-departmental brief allowing joined up thinking and action, across government. We know that there are many ADR schemes taking place across government, whether in the NHS, the courts, SEN provision or in, for example, possession claims, but development of the sector is hampered by a lack of oversight and experience sharing between schemes. We would advocate for “mediation leads” in every Department to enable the sharing of good practice across government. Crucially, we would advocate for the reinvigoration of the Dispute Resolution Commitment (the ADR Pledge) that has dropped from sight, but would show leadership and commitment from Government to the resolution of disputes through means other than costly court processes. We support the role that the Report advocates for Government in providing “holistic and long-term strategic thinking that enables the sector to transcend short-term concerns”. Yes, there may be a need for increased government funding and/or investment in the sector, but this investment will be money well spent if it builds on London’s reputation as a leading dispute resolution hub – a reputation which the Report argues cannot be taken for granted.
Failures in the current system
The Report highlights the lack of integration of ADR in the Court system and the failures in the system to specifically direct parties to ADR. More needs to be done to ensure that mediation or other forms of ADR are viewed as a default option to attempt before coming to court. This is something that we, at the CMC, have been encouraging the Ministry of Justice to rectify – there is no information on the gov.uk pages as to what mediation is. The gov.uk pages link through to the CMC’s directory of mediators however, it is our view that, if the Government is advocating ADR, it needs to educate the public and potential users as to what ADR or mediation is before suggesting parties mediate.
Mediation in particular
The Report looks at mediation in particular and makes 3 recommendations which the CMC wholeheartedly supports. Firstly, as the CMC advocated during the consultation process in 2019, that the UK signs the Singapore Mediation Convention – this would promote the wider use of mediation. Secondly, to train a wider pool of expert mediators. Because of the lack of joined up policy, government engagement with professional bodies to drive up the number of qualified and accredited mediators is patchy.
Thirdly, to ensure the judiciary has the knowledge and skills to actively promote and encourage mediation. Although those more recently appointed to the judiciary will have had experience of mediation in their practices prior to appointment, we would submit that mediation experience, such as the observation of mediation in practice, should be part of a judge’s initial and continuing training – there are many who would be willing to provide such opportunities.
Good for Business
The Report’s authors argue that an effective system for avoiding, managing and resolving disputes is a vital underpinning for a healthy and vibrant business sector. We would argue that the benefits lie not just with business, but with society more generally. A reduction in the impact of costly and time-consuming disputes is of wide benefit to all and the government should be leading the way by mandating mediation or ADR clauses in all its contracts.
The Report’s research found that the business community’s priority is to have any disputes resolved in the simplest and most efficient way possible and, therefore, the flexibility of options and process are important. Mediation can truly play its part in providing this option by giving parties the opportunity to find creative and, importantly, often constructive resolutions. We are interested to learn that businesses saw sectoral expertise as more important than extensive legal training – this is something that the CMC supports: however, the challenge is to convince the lawyers advising such businesses to recognise and support this.
The Report makes the point that although mediation and arbitration are important options for resolving a dispute obviously it is much more beneficial if the crystallisation of such a dispute can be prevented in the first place. The Report then examines the role that Conflict Avoidance Boards can play. In our view, CABs can perform a useful role, especially on large and complex public projects, but what we see as necessary is a wholesale change in the way mediation is viewed. It appears to be the case that mediation is viewed by many, including, perhaps, the authors of the Report as a process which only takes place once a dispute has crystallised. However, it is our view that the skills of a mediator can be just as valuable if used to avoid conflict without necessitating the formality required of a CAB. Mediation must be viewed as a process of facilitation, negotiation and not just a process which is only suitable once the parties are in or have threatened litigation.
Lawyers as gatekeepers?
The Report suggests that there is a risk that mediation becomes over-legalized because of its reliance on ex-corporate lawyers as mediators and that they are not best placed to preserve commercial relationships. We do not see the evidence for this and believe it to be a misplaced generalisation – there are many successful mediators who are lawyers, but equally many who are not and, unlike arbitration, the outcome of a mediation is in the hands of the parties who find the compromise, often a creative one, which could not be achieved through litigation or arbitration. Of course, there should be an encouragement of diversity in mediation – both in terms of background and culture – but we don’t agree that there is a risk of lawyer dominance of mediation to its detriment.
Our view is that this Report makes some interesting points and strong recommendations which we will be discussing further in our conversations with the Ministry of Justice and government. We truly believe that the key to the promotion and establishment of ADR in the avoidance and management of disputes lies in a “whole of government policy” and that this is the time for this to be embraced.
Please direct any questions to Henrietta Jackson-Stops at email@example.com
 See, for example, the Cabinet Office paper, “Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency”