Governments play a vital role in the advent of a Golden Age of mediation in three critical areas: generating robust data; mobilizing public and professional engagement; and, most visibly of all, inspiring uptake and demonstrating that they “walk the talk”. All of these can be achieved with the active support of mediation’s stakeholders.
Mediation implementation mainly happens at national level. Until now, the role of Governments has been focused on deciding that an alternative to court action is necessary, that mediation can be a solution, and then legislating to introduce mediation within their civil justice systems. Later, attention has been given to how that legislation is integrated into the larger corpus of national laws and especially court procedures. Mediation legislation has developed gradually over the last three decades, in some places more successfully than in others. But there remain many other things that Governments, uniquely, can do to propel mediation into the mainstream of dispute resolution.
Generating robust data
As the Masters degree students enrolled in my Comparative ADR Systems class discovered immediately, there are severe data deficits in mediation. It is not yet possible to gather reliable figures on the numbers of mediators and mediated cases in the most countries. There is currently a lack of systematic data gathering at the national level (with very few exceptions, Italy being one example) regarding not only mediation cases per annum, but the number of trained and accredited mediators; the types of cases resolved through mediation; the success rates of mediation; the types of cases most likely to be referred to and solved using mediation; the average costs of mediation compared to the average costs of litigation; the extent of user satisfaction with mediation and mediators; and other basic indicators. Without such data it is very difficult to assess, with any reliable degree of accuracy, how deep or how far mediation has penetrated societies and economies, and what the consequences may be.
Governments have the capacity, in collaboration with courts and dispute resolution service providers[ii], to establish systematic and comprehensive data gathering methodologies concerning all aspects related to mediation. Without such information, expertly and objectively analyzed policy making in mediation, and dispute resolution more widely, remains, at best, an educated guess.
Mobilizing public and professional engagement
In many countries, mediation development has been driven by certain tangible objectives, such as the need for a more collaborative and non-confrontational method of dispute resolution, the importance of reducing court backlogs and savings to civil justice budgets. These are all important and worthy objectives, but there has been less concern paid to how mediation impacts upon the interests of different stakeholders. Introducing mediation represents change; and not all stakeholders are happy with such change, particularly many practicing lawyers and sometimes judges. A balanced, moderate approach is needed, and all stakeholders can be engaged in the development of mediation public policy. The political facet of public policy design cannot be ignored. Accordingly, policymakers need help to use the information and data gathered by monitoring and assessing mediation progress to mobilize the widest support among all potential stakeholders and the public at large. It is important to attract the strongest possible support. Potential disputants, for example, are rarely consulted sufficiently; if they were engaged more systematically, the pace of change may accelerate, and their advisers may start to become less resistant to change.
Leading by example
One of the great virtues of Government is the ability to lead by example. If Governments want to encourage and inspire the use mediation in a significant manner, they can use it themselves. The standard contracts entered into by Government agencies could routinely include multi-step dispute resolution clauses as a sensible strategy for avoiding and resolving conflicts. This would be a highly visible act of leadership. Yet curiously, in many parts of the world, parties contracting with Government agencies often report being presented with single-step dispute resolution clauses (litigation or arbitration) without a prior mediation step, and even difficulties getting Government agencies and public authorities to consider using mediation.
Stakeholders could signal to Governments that it would be welcomed if Government agencies and public authorities adopt a pledge to mediate wherever appropriate and include a mediation step in the dispute resolution clauses in any contract they sign, any program they fund, and any project they run. Such a pledge, coupled with a mediation step clause, will send a strong signal about how seriously Governments view mediation. The impact would be fourfold: first, it would get parties to mediation, giving them a better understanding of the process and building trust; second, it would give Government officials and public servants a better understanding of mediation and how to use it to their benefit; third, it would help avoid litigation and arbitration, with all the consequential costs, risks and delays; and finally, it would develop a progressive market for mediation for the wider benefit of society and the economy. Overall, it would build momentum behind mediation and stimulate greater use.
Providing leadership support
Mediation institutions, skills trainers, scholars and other stakeholders providing assistance to Governments in developing mediation will be adding an important value to societies and economies. But caution is required regarding the transfer of mediation best practice models from one country to another. When learning from others’ experiences, public policy designers and their consultants will want to adapt to local cultural and legal contexts before adopting models proven to work well elsewhere.
Mary Parker Follett (1868-1933), one of the world’s earliest organizational theorists, is credited with introducing the philosophy of “win-win”. She also characterized leadership as the art of getting things done through others. Stakeholders in mediation can offer their collaborative expertise to help Governments build data for policy making, to generate wide support for amicable dispute resolution practices, and to be seen to inspire through their visible behavior. Governments can improve their societies, reduce their civil justice budgets, and benefit from mediating, rather than litigating and arbitrating, their disputes. The expertise already exists in the mediation field to help Governments devise new resolution strategies.
As Mary Parker Follett also taught: Conflict is best resolved not through compromise, but through invention.
[i] Christian Radu Chereji is professor of conflict studies at Babeș-Bolyai University (BBU) in Cluj, Romania. He is a conflict anthropologist with an interest in traditional conflict management practices and has worked on mediation-related research project in Greece, Turkey, United States and Uganda, among others. He was a 2013-14 Fulbright Senior Scholar, and founded the Conflict Studies Center at BBU. Christian is the senior editor of the Conflict Studies Quarterly journal, one of the few academic journals dedicated to conflict studies in all their inter-disciplinary aspects. Christian is also a practicing mediator, and one of the pioneers of mediation in Romania. He has acted as a consultant to the national body regulating mediation in Romania, to the Romanian Parliament on mediation legislation, and to the Prime Minister of Romania on mediation policymaking. He has trained more than 700 mediators in Romania and has published many articles on mediation, negotiation and strategic decision-making. As a mediator, he focuses on public policy disputes, conservation and development conflicts and business-community disputes. In 2018, he worked as an international expert for USAID-SAFE on a community-based mediation design and implementation project in Uganda. Christian is accredited as mediator by the Romanian Council of Mediation (2008) and has been an IMI Certified Mediator since 2011. This text is an adaptation of the author’s conclusions in an EU-funded research project on designing mediation public policies in Romania and the EU.
[ii] CEDR, for example, conducts a biennial survey via an internet-based questionnaire, which all mediators in the UK are invited to complete, regardless of organisational affiliation. Based on the survey results, CEDR publishes a biennial Mediation Audit of the UK market that is publicly available and provides a rich source of data to assist Government policy makers. For more information, click here. The Global Pound Conference Series 2016/17 is another example of large scale data generation organised by stakeholders, and which engaged a number of Governments and Judges. For more information on the GPC, click here.
Originally published via Mediate.com on July 10 2020. Republished with permission.