For people interested in mediation in Scotland

July 2011 Issue No 67

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Mediation in a cold economic climate

Jonathan Djanogly, the UK Parliamentary Under Secretary for the Ministry of Justice has made no secret of his support for mediation. In various speeches and press releases he has emphasised the need to consider alternatives to litigation. During his time at the Ministry of Justice, there have been several important initiatives which have raised the profile of mediation significantly including: Maintaining Legal Aid funding for family mediation Introducing a pre-action protocol for family mediation information assessment meetings Establishing a Small Claims Mediation Service across all Her Majestys Courts and Tribunal Services (England and Wales) A new Government Dispute Resolution Commitment to replace the ADR Pledge Cynics would say that the key driver for the focus on mediation is that the Ministry of Justice has to shave 23% from its overall budget and mediation is perceived to be a cheaper alternative to litigation. With Legal Aid now costing over 2 billion each year it is an obvious area for Ministers to prune. This also applies to ensuring that Government departments are not wasting money litigating disputes that could be resolved using quicker and more efficient means. The ADR Pledge which preceded the Dispute Resolution Commitment (DRC) saved the public purse 360 million.(1) The new DRC requires all Government departments and agencies to use alternatives such as mediation, arbitration and conciliation wherever possible before taking a dispute to court. Legal Aid Just why Legal Aid costs us so much in comparison to the Germans and the French, 39 for England and Wales, 31 for Scotland compared with 5 a head for France and Germany,(2) is a subject worthy of investigation and debate. The UK Government have decided that they want to reform the legal aid system so that it: Discourages unnecessary and adversarial litigation at public expense Targets legal aid to those who need it most Makes significant savings in the cost of the scheme Delivers better overall value for money for the taxpayer On the face of it the reforms are hard to argue with, but as ever the devil is in the detail. The Governments plans for Legal Aid were uncovered on 21st June 2011 and include cuts which will affect legal aid for disputes over welfare benefits, clinical negligence, personal injury, debt, divorce, employment, immigration and housing. Legal Aid will remain available for cases involving threats to liberty, physical safety, child welfare or the immediate threat of homelessness. Many anti poverty organisations have voiced concerns that these cuts will disproportionately affect the poorest in society.

The Scottish Mediation Network is funded by the Justice Directorate of the Scottish Government. Scottish Charity No SC034921, Company No SC258173 Registered Office: 18 York Place Edinburgh EH1 3EP www.scottishmediation.org.uk

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It is very unfortunate that the promotion of mediation is perceived to come at the price of denying access to justice for the poorest and most vulnerable. Lord Neuberger, Master of the Rolls, who has in the past spoken favourably of mediation, said: Access to the courts is not a privilege but a fundamental right. If there is no effective access to the courts, the fundamental underpinning to all forms of dispute resolution systems, such as mediation and even arbitration falls away. Lord Neuberger also challenged the comparison figures given by Ken Clarke, Justice Secretary, for other European countries citing a Council of Europe report which showed that when the entire amount spent on the courts, legal aid and prosecution services was taken into account, the UK actually spends slightly less than average compared to other European countries. We need to make it clear to all that mediation should be a voluntary process and people should not be compelled to use it because they cannot afford the alternative. Mediation has to be sold to people on its merits not on the basis that it provides a cut price alternative to litigation. We also need to challenge the notion that Access to Justice is the same thing as Access to the Courts it is not. There are occasions where access to justice is more readily obtained by going to mediation than litigation. In Scotland a different approach is being taken, according sources inside the Scottish Legal Aid Board, and it is unlikely that the poor will bear the brunt of cuts to the legal aid budget. However it is clear that there will still be a strong requirement to find savings in the Legal Aid budget.

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One of the impacts of the legal aid reforms in England and Wales is a projected increase in mediation business of around 10 million per annum. There is no reason why we should not be pushing mediation in Scotland as a means of helping to resolve civil disputes. A cursory examination of the SLAB Annual Reports indicates that there may well be areas where not only would mediation be a quicker and more efficient means of resolving disputes, but where there would be a public good in so doing, as cases are resolved more quickly and with significantly less stress to the parties. However we need to sell mediation on its merits not on the basis that it can undercut litigation. Mediation needs to be seen by people as a positive and not Hobsons choice. We have a new Minister for Community Safety and Legal Affairs, Roseanna Cunningham, and we will be taking the earliest opportunity to seek a meeting with Roseanna to discuss these matters. We would be very interested in getting feedback from our members and the readers of Collaborate so that this can be a discussion informed by the opinion of the Network and our friends. If you wish to comment on any of the issues raised in this article, please email admin@scottishmediation.org.uk Margaret Lynch, Director
(1) (2) Ministry of Justice Annual ADR Pledge Reports 2001 - 2011 Reform of Legal Aid in England and Wales:The Government Response, UK Ministry of Justice June 2011; Scottish Legal Aid Board Statistics Total Cost of Legal Assistance to the Taxpayer 2008/9; Scotlands Population statistics 2009 Scottish Government Press Release 06/08/2010

The Scottish Legal Aid Board can provide funding to help people who qualify to get legal advice and representation (where a solicitor puts their case in court). Applications for legal aid can only be made through a solicitor. Whether you can receive legal aid or not is based on both the merits of your case and your financial position. You may receive civil legal aid but still have to make a contribution to the cost of your solicitor. Further information about the availability of legal aid for mediation can be found on our information leaflet available in our online library.

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The Road to the New Practice Standards

New practice standards for mediators and mediation training organisations have been developed following an extensive consultation exercise which involved one third of Scotlands registered mediators, a survey of mediation service users and key stakeholders. The brief set out by the Standards Board was that the Review should seek to: Improve the quality assurance of mediation in Scotland Ensure the standards are benchmarked against those of the CMC and College of Mediators in England and Wales Strengthen the Register by exploring means of linking with other specialist professional registers in Scotland The Standards Board appointed a 3 person review group comprising Margaret Lynch, Director of SMN, Stuart Valentine, CEO of Relationships Scotland and Ian McDonough who is both Director of the Scottish Community Mediation Centre and the Chair of the Standards Board to take forward the review. The Consultation Process All members of the Scottish Mediation Register (SMR) were invited to participate in the consultation exercise and could do so by: Attending one of the consultation meetings Submitting their thoughts in writing Completing an online questionnaire Telephoning the office and speaking directly to the Director, Margaret Lynch, who was collating responses Findings of the Consultation Process Key Stakeholders The Scottish Government position was quite clear. They wanted to ensure that there was sufficient confidence about the quality of mediation amongst the general public and in commercial enterprises so encourage its uptake. Self certification, in their view, was no longer an option. Users of mediation services wanted a transparent system of independent validation of mediation skills and experience. Registered Mediators A number of concerns were flagged by mediation practitioners including: Concerns about the focus on the number of mediations conducted would benefit a few experienced mediators and concentrate opportunities to mediate on those few individuals. Fact that mediators were finding it difficult to access clients willing to pay for mediation meant that the amount of money available to invest in quality assurance was limited. Other mediators wanted a much more robust approach to quality assurance. Some felt that client satisfaction rates were a better indication of a mediators skill than the number of mediations successfully concluded. Need to maintain practice standards at a price mediators can afford we want to expand the cohort group of registered mediators in Scotland, not make it smaller. Significant demand was expressed for a mediation mentoring programme to enable newly trained mediators to gain sufficient mediation experience to go onto the Register. Comparing Scotland with the CMC and College of Mediators It became apparent the Practice Standards for the SMR had fallen behind those of the

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CMC and College of Mediators and there was a danger that the practice standards in Scotland were perceived as being weaker and providing less quality assurance than that of our counterparts in England and Wales. There was a general view expressed that we had to strive for equivalency with the CMC and College of Mediators, even if we did not follow their lead to the letter. SMN and the Mediation Families The SMR practice standards had always set the bar lower than the practice standards set by Relationships Scotland for family mediators and the Scottish Community Mediation Network for Community Mediators. Both Relationships Scotland and the Scottish Community Mediation Network were keen to ensure that they continued to be the rightful owners of practice standards for mediators in their field. A Partnership approach will be taken with both Relationships Scotland and the Scottish Community Mediation Network which will see all of their services advertised on the Register. Outcomes We hope that we have managed to move towards a more robust quality assurance system whilst at the same time recognising that in the current economic climate, mediators cannot be expected to invest more in their cpd. We hope that the new practice standards will be well received, and there will be an opportunity for SMR members to comment on them at the forthcoming Members Meeting in the Conforti Institute, Calder Street, Coatbridge on 31st August 2pm 4pm.

Membership Afternoon Tea

Members of the Scottish Mediation Network are invited to join in Afternoon Tea at the Conforti Institute, 31st August, 2pm4pm. Tea and scones will be provided! Members, for further information or to book your place, please email admin@scottishmediation.org.uk There is a direct train from both Edinburgh and Glasgow to Coatbridge. We will have a mini bus picking people up at Whifflet and Coatbridge Sunnyside Stations. To book your pick up, please let us know which train you will take and which station you will arrive at and include this information in your email confirmation of attendance. Please let us know if you can come by emailing admin@scottishmediartion.org.uk

New members
We continue to welcome new membership applications and renewals, for information about member benefits and the different types of membership or registering as a practitioner visit the Join section of our website.

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New Practice Standards: Guidance for Mediators

Following a review and consultation on practice standards for the Scottish Mediation Register, a comprehensive report and new Practice Standards have been produced, these will replace the old Benchmark Standards. Both documents were approved by the Standards Board on 25th May 2011. The new Practice Standards came into effect on 1st June 2011. There will be implications for mediators in Scotland both in the short and the long term. The Scottish Mediation Network will support all members and practitioners in ensuring they understand these changes and in achieving the new Practice Standards. meeting this requirement for the 2011-2012 membership year. Initial training requirement The mediation training will include not less than 40 hours of tuition and role-play, (with a minimum of 20 of these training hours spent in role play or practical exercise) including a formal assessment. The assessment should include direct observation of practice as a mediator in role play. The initial training requirement for admission to the register has been raised from 30 to 40 hours of training, maintaining the previous requirement that 50% of this time be spent in role play or practical exercise. Sufficient experience Admission to register now requires the completion of 2 mediations in the past 12 months and/or not less than 6 hours conducting mediations as a principle mediator in the past 12 months. Previously, admission to the register required the same number of mediations and hours, but gave the options of assistant, observer or co-mediator as eligible hours for satisfying this criteria. These will no longer be acceptable as forms of experience for satisfying entry to the Register. Systems for addressing concerns All Scottish Mediation Network Registered mediators are required to have an appropriate system for addressing concerns. In addition to the Practice Standards now required mediators to inform clients that when their own complaints handling process has been exhausted, the clients can, if they wish. Take a complaint to the Standards Board. Family and Community Mediators Following the establishment of partnership agreements with Relationships Scotland and the Scottish Community Mediation Network, responsibility for setting practice standards

Timescale

Some changes found in the Practice Standards will take effect immediately, while some changes will take affect over the next 12 months. In addition there are changes that will take time to develop and implement. We aim to ensure that practitioners stay informed on these changes. There are immediate changes in the areas of: Initial training requirement Sufficient experience Systems for addressing concerns Family and community mediators Ongoing changes in the areas of: Maintaining a portfolio New category of mediator There are also some longer term changes, which include: Learning and development plans Competency framework

What are the immediate changes?

The following changes will have immediate effect for all new applicants to the Scottish Mediation Register. However, all current members of the register who have paid before 1st June 2011 will be deemed as

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(including initial training) for community and family mediators are deferred to the respective organisations: Family and Community Mediators must comply with the practice standards set by Relationship Scotland for Family Mediators and the Scottish Community Mediation Network for Community Mediators. Only those mediators who were approved by Relationships Scotland or the Scottish Community Mediation Network, or who could evidence that their qualifications and practice standards were equivalent to those set by Relationships Scotland in respect of Family Mediators or the Scottish Community Mediation Network in respect of community mediators would be able to list themselves as family or community mediators on the Register. This change will not affect mediators who do not work in the fields of family or community and neighbourhood mediation.

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New category of mediator A new category of mediator has been introduced: Advanced Mediator. The requirements for this category are higher than general admission onto the register and are as follows: Advanced Mediator requires completion of initial training and 15 and/or not less than 60 hours conducting mediations in the past 12 months as principal mediator or comediator in the past 12 months. The Scottish Mediation Network will not actively identify mediators who meet the standards for Advanced Mediator. Applications to be listed as an Advanced Mediator should be addressed via email to admin@scottishmediation.org.uk. You may be asked for evidence to support this application.

What are the changes in the long term?

Member log-in to the website no longer permits members to access individual member information once an application for registration has been submitted. However should any changes be required, we can do so at the office. Changes can be made by emailing admin@scottishmediation.org.uk detailing the request. Please allow time for these changes to take place. The review and new Practice Standards also has implications for mediation training providers; a separate advice note has been produced to accompany this document. Training providers are advised to read the briefing note for training providers to ensure that they are fully informed on the developments taking place. Guidance for Training Providers, along with a full version of the new Practice Standards, can be accessed through the website.

What are the on-going changes?

Maintaining a portfolio The new Practice Standards take a step away from self certification and require all mediators to maintain a portfolio containing the following: Initial Training Certification Log of Mediations/Mediation hours undertaken Log of CPD hours and CPD certificates Certificate of Insurance Annual Training and Development Plan These portfolios will be subject to random checks to ensure that the requirements for the register are being met. It is anticipated that approximately 10-15% of portfolios will be requested for verification. Members of the register will be given 12 months from 1st June to begin gathering and maintaining their portfolios. As a consequence, registered mediators should expect requests for portfolios to begin 1st June 2012.

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Helen Turner, Scottish Mediation Network Intern

Helen reports on her experience so far with SMN
My first challenge was to understand the work carried out by SMN, what my role was and how that fitted in with SMNs overall aims and objectives. My brief, in a nutshell, was to concentrate on the recently launched Helpline project and to increase awareness and promote the use of mediation in Scotland. I certainly had a clear direction and plenty of scope. The problem was, I only had 240 hours of internship There has been much variety in the role so far, from developing reporting systems for information capture and reporting of key performance indicators in cases referred for mediation and dealing with telephone enquiries to distributing promotional material. My main focus has been on engaging directly with advice centres and going out giving talks on the benefits of mediation, the work of SMN and promoting the Helpline in order to reach as great a proportion of the public as possible in the limited time available. So far my travels have taken me from Lochgilphead to Leith and I plan to cover as many locations as possible in the time remaining. Thus far I have been extremely encouraged by the interest shown in mediation and the Helpline. I have thoroughly enjoyed my work here and feel I will have made a meaningful contribution to the promotion of mediation. However I am acutely aware that this is just a drop in the ocean and there is a real need for a coordinated and sustained effort to effectively promote mediation in Scotland and there is a long way to go. I am grateful to have had the opportunity to contribute to the excellent work of SMN and will continue to advocate the use of mediation, even when Im not paid to do so! Helen Turner Helen will be with SMN until the end of July and can be contacted by emailing helen@scottishmediation.org.uk

The EU Directive on Mediation

Scotland implemented the EU Directive on Cross-Border Mediation through the CrossBorder Mediation (Scotland) Regulations 2011, effective from 6th April 2011. The EU Directive does permit changes to domestic mediations, however these were not compulsory. In Scotland, changes will not be extended to domestic mediations, so mediations taking place between two parties in Scotland will not be affected. The Regulations give effect to Article 7 of the Directive, regarding the confidentiality of mediation and mediators not being called to give evidence. It sets out draft amendments to the laws of Scotland as to the extension of limitation and prescription periods in a number of statutes (Article 8). No further changes have been made; no rule changes were required with regard to Sheriff Court and Court of Session by the EU Directive. These EU measures are very important because they promote an alternative and additional access to justice in everyday life. Justice systems empower people to claim their rights. Effective access to justice is protected under the EU Charter of Fundamental Rights. Citizens and businesses should not be cut off from their rights simply because it is hard for them to use the justice system and because they cannot afford it, cannot wait for their time in court, or cannot deal with the red tape," said Vice-President Viviane Reding, EU Commissioner for Justice.

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At Edinburgh Cyrenians, we are determined to prevent young people from experiencing the negative impact of homelessness. Our creative and very successful Amber mediation and support service is designed to help families to overcome conflict and have a stable, safe family home. This Mediation Worker position represents a new partnership project between East Lothian Councils Homeless Department and Edinburgh Cyrenians. The Mediator will work with young people (ages 16 20) and their families where conflict is putting the young person at risk of homelessness. They will attend Housing Options interviews to explain and offer mediation where it is appropriate and will work mediatively with families across East Lothian. Support for young people and their families will be provided by Homeless Department staff. The successful candidate will be an experienced mediator, previously have worked with young people/ families and be skilled in mediating high conflict cases. The work will be responsive, exciting and, most of all, rewarding. For full details and an application pack please visit www.cyrenians.org.uk, call 24 hour recruitment line 0131 475 2490 or e-mail: recruitment@cyrenians.org.uk . CVs will not be accepted. Closing date: Noon, 18th July 2011 Interviews: Monday 25th July 2011

Charity Commission publications say trustees and charities should try to resolve disputes before resorting to litigation
New governance documents published by the Charity Commission say charities must use mediation to resolve disputes between trustees before they resort to legal action. The documents, published in June, include a new clause that says: "If a dispute arises between trustees and the dispute cannot be resolved by agreement, the trustees party to the dispute must first try in good faith to settle the dispute by mediation before resorting to litigation." The clause is part of a new model trust deed, which can be used when setting up a new charity. It was not included in the previous version, although the commission has previously encouraged mediation. Charities must have permission from the regulator before becoming involved in litigation. Robert Nieri, a senior associate at the law firm Freeth Cartwright, said charities did not have to use the commissions model and could choose to omit the mediation clause from their own, but the commissions decision to include it was a way of emphasising the importance of mediation. This is really welcome news, and we hope that OSCR in Scotland follows the lead shown by the Charity Commission in England and Wales. Mediation can save both time and money and is a much more effective means of resolving disputes in the third sector. The Scottish Mediation Helpline was launched in February and if Scottish Voluntary Organisations or Charities are in dispute with suppliers of goods and services, if they have employee disputes or even disputes with funding bodies, they can phone the Scottish Mediation Helpline on 0131 556 8118.

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The Scottish Mediation Network is funded by the Justice Directorate of the Scottish Government. Scottish Charity No SC034921, Company No SC258173 Registered Office: 18 York Place Edinburgh EH1 3EP www.scottishmediation.org.uk