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How to make a court mediation scheme work

View profile for Clare Thornton
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I have recently been involved in setting up a scheme in my local County Court where we undertake MIAM’s meetings in the Court arena, and have been so pleased with how the scheme is working, that I thought it might be useful to share the experience with others.

Firstly, I appreciate that not all Courts are the same and so our experiences may not work in other Courts, but hopefully by sharing them, we can engage a debate and others may have their own experiences they too could share.

So, where to start?  Well maybe a bit of background.  I am a Solicitor Mediator based in Wakefield in West Yorkshire.  We are a relatively small city and have a number of towns nearby, including Castleford and Pontefract, which feed into our Court in Wakefield following the closure last year of Pontefract County Court.

There are a number of Mediators in the area including other Solicitor Mediators, non-Lawyer Mediators and not-for-profit sector.  We began about two years ago, by inviting all local Mediators to join together for the purpose of setting up the scheme and working together generally to promote Mediation in the area.

This group proved to be a real success with the majority of Mediators in the area attending the meetings.  We designed and distributed a leaflet with all our details on it, a poster to promote Mediation and even a Facebook page with contact details for the group on for the public to access.  This kept the costs down and meant each Mediator/firm was only paying a few pounds for some fairly effective advertising.  It also enabled the Court to feel comfortable with handing out the leaflet and displaying the poster as it did not mean them promoting any one firm or Mediator.

We are very fortunate that in Wakefield County Court we have two very proactive Judges (and now a third who has literally just started so watch this space as far as he is concerned) who are (now) both pro Mediation.  This however has not always been the case and one of them in particular, did not appear, at first at least, to really get the idea of Mediation.

We therefore spent some time in educating the judiciary and Court staff on the benefits and process of Mediation.  This was crucial for the scheme to be effective and is the best advice I can give – get your Judges “on side” at an early stage!

I was flabbergasted when the Court staff, when we referred to an FM1, saying “isn’t that the form we were told not to bother with ages ago”?!  We have, I am pleased to say, come a long way since then!

Once those of us in the group with Legal Aid contracts got our outreach consent, we were ready to go.  I managed to crib a “protocol” for the scheme from Lancashire County Court’s scheme through a PPC contact of mine, and we used this as a basis for our scheme.  I also arranged to meet directly with our District Judges and Court Manager so that we were all clear about the limits of our willingness to run the scheme (e.g. we will not actually Mediate in Court and we will not attend before the Judges to tell them whether the parties are willing to Mediate or not).  The Court agreed to dedicate a room for us to see Clients with a sign on the door to indicate who we are.

This meeting was crucial to the smooth running of the scheme and in particular they agreed that if we indicated a matter was suitable for Mediation and asked for an adjournment of the proceedings for Mediation to take place, which we do by ticking a box on a form I have developed for this purpose, then they would not need to see the parties again and would simply agree the requested adjournment.  When the Court has a busy children’s list, this is of real benefit to the Court in speeding things up and helps the Client to see how much the Court encourages them to Mediate where the case is suitable.

In fact, the Judges have gone further than that and have been quite pro-active with LIP’s who are not sure whether they want to Mediate even after attending a MIAM’s, and I have had a number of cases where one party has been “unwilling” but then has become “willing” after going back in with the Judge who has spelled things out to them in terms of the risk they face in asking a Judge to “decide” for them.

It is also important to engage the Court Usher on the day of the Court so that they can offer our services to Clients, or at least be able to give them some information if asked, and also Cafcass Officers who are present at Court, as their endorsement also helps Clients to engage (their safeguarding checks are also important in assessing suitability of course).

Our scheme is in its
infancy but I am delighted with how it is going so far.  I also know that the Judges too can see the benefits for them in taking out of the legal system those cases where Mediation is suitable, and allowing them more time to deal with the cases involving urgent applications, safeguarding issues and the like.  With the demise of legal aid and the ever increasing rise of the LIP, they seem to be willing to accept whatever help they can get!

So to summarise, the key things as far as our experience has shown are:-

  1. Invite all local Mediators to get involved (not all will want to of course, especially those that do not have a legal aid contract);
  2. Produce a poster/leaflet for the Court to use so that they are not being partisan;
  3. Educate your Judiciary and Court staff (sadly the Judge’s do not seem to generally get any training centrally so local training is imperative);
  4. Follow a strict protocol so that there is no room for confusion;
  5. Work with the Judge to ensure the scheme benefits everyone and runs smoothly.

We are monitoring the rates of take up of the MIAM’s and then conversion into actual Mediations but the signs are very positive so far.  A great advert for the benefits of working together!