Development Of Commercial Mediator Skills Training In England And Wales

The UK mediation market has developed organically, both in a self-regulatory sense and in the development of training programmes and growth of the market in general.  This compares with the development of mediation in other international jurisdictions where regulation and standards have tended to come before the mediation market is established.  The primary difference in approach is that in the UK, mediation and mediator training tends to be flexible and practical, the development and delivery of training programmes often being led by practising mediators.  In other countries with a much more rigid approach to regulation and common standards, the content and structure of training tends to be theoretical often being delivered by academics rather than practicing mediators.  In some examples, notably, as exampled below, Bosnia, this approach can stifle the development of the field as little or no attention is given to nurturing demand.

With more and more cross border mediation happening, regulation and common standards are however an inevitable debate.  But the author along with many UK mediators will continue to lobby against restrictive definitions for training standards, mediator registration or regulatory systems in favour of rigorous ‘Codes of Good Practice’ or ‘Codes of Conduct’ within a robust self-regulatory environment.

MY VIEW

Recently I was running a mediator skills training programme to a group of senior lawyers and academics in Hong Kong and they remarked how practical and enjoyable the course was, but also how rigorous they were finding it. They said it was different to any other training they had experienced and asked me whether this was typical of mediator training in England.   We discussed this some more but these comments stayed with me and when asked to write this article, their words came flooding back to me.  If asked to summarise the mediator skills training in England, the words ‘practical, enjoyable and rigorous’, are as good a description as any.

And in answer to their question I would have to say that mediator skills training has indeed developed in a particular way in the United Kingdom and this has lead to some distinctive hallmarks which differentiates it from similar training in other jurisdictions. This article will explore the development of mediator skills training in the UK and give an explanation as to why these hallmarks have emerged. 

When looking at the development of mediator training in the UK, reference will be made to the major mediation training providers.  However, particular reference will be made to the Centre for Effective Dispute Resolution (CEDR).  Not only is it one of the largest and most well known mediator training providers it is also the one with which this writer is most familiar.

GETTING THINGS STARTED: AWARENESS OR TRAINING

It is obviously an essential part of any developmental programme to raise awareness among key influencers – gain their buy in and a certain momentum will start.  However in order to protect any fledgling concept it is essential to ensure that there is a core body of experts who can deliver a quality service, certainly one which will perpetuate repeat use.  Once this core body of expert mediators is established and there is a ground swell of need, invariably the group will form some type of organisation to ensure the integrity of the service, the expansion of influence into different sectors of business to ensure that demand meets supply and vice versa.  Once established, questions of regulation; integration into civil procedure; other uses of the process; and, as sophistication of the use increases, advanced skills development of mediators is inevitable.

So it was with the beginnings of mediation in England and Wales.  Prior to the late 1980’s there was very little awareness of mediation as we know it, let alone anyone practising mediation.  There was no demand for the services of mediators nor training for people to become mediators.

In the late 1980’s a group of lawyers who had had experience of mediation practice in the United States, began to ask whether this was a process that had a place in civil litigation in England and Wales.[1]  The awareness campaign that ensued resulted in the launch in 1989 of the ADR Group in Bristol and of CEDR in London with the backing of the Confederation of British Industry and support from 60 of the UK’s leading FTSE 100 companies and leading law firms.  Few could have predicted then that the work done by these early pioneers would result in the integration of mediation into the Civil Procedure rules some 15 years later and the creation of many more regional and national providers and groupings of independent mediators offering both mediations and mediation training. 

It is with this backdrop that the first training courses need to be put into perspective.  In the early days of mediation training it is questionable whether the objective of the programme was solely to train participants to be mediators or to give equal weighting to raising awareness, particularly amongst the legal community, of the basic concepts of mediation and its uses.

All agreed that an intrinsic ingredient to the success of either or both of these objectives would be the development of a course that would provide a wide enough choice of highly skilled and therefore respected individuals with diverse professional and business backgrounds so as to support any growth potential. 

Furthermore, and this arguably was to impact most significantly on the perceptions of the course today (as expressed by those Hong Kong delegates), it was decided that training and mediation practice should be driven by the client’s needs, i.e. as a commercial transaction rather than developing a life of its own out of touch with the real objectives of those involved.  As a result and from the outset there was a focus on the development of a practice based skill set.

The first courses, which actually professed themselves to be skills training and not merely awareness-raising sessions were nevertheless very rudimentary in nature. They comprised of inherently practical tips based on Faculty’s own experiences and were often led by experienced American mediator trainers complimented by English pioneers in mediation.[2]  Over time this colonisation of American mediators ceased once local mediators and trainers gained sufficient experience to lead training.

From these early origins of mixed objective programmes, mediator skills training in England began to develop.

NON-REGULATORY APPROACH

The regulatory  development in England and Wales was not uniform and could best be described as ‘organic’.  There was never any attempt in the early years of mediation training to prescribe what must be taught or how it should be taught.  Also at this point, by now in the early 1990’s, Government was not yet interested in mediation as a formal process to be used in civil litigation and therefore left mediation organisations to decide these issues for themselves.

As mentioned above, one of the core drivers for the development of mediation and therefore of the development of the training of mediators, was to provide an inherently pragmatic set of skills that were flexible enough to relate to the end client’s specific requirements – whatever these might be.  It is perhaps opportune at this point to touch on what types of situations might be faced in commercial mediation.  These span every industry; dispute type - from intellectual property to breach of contract; they  can involve purely monetary solutions; short or long term changes in business practice; or, can deal with highly emotionally charged disputes from personal injury claims to employment discrimination claims.  Flexibility of the process is therefore fundamental to the success of mediation implementation.

The mediation profession in these early days did not attempt to self-regulate in relation to standards.  Their energy was focussed in raising awareness of mediation, the power of the process and of developing something that was client responsive.  It was very much a case of each training provider being free to develop their training the way they felt best met the needs of their participants.  This led to a very market-driven approach with training providers each separately developing their courses and allowing the market to decide on quality through the market forces of word-of mouth and reputation.

Accordingly, in the early to mid 1990’s the training skills courses continued along the lines of this organic development.  From an initial focus on process, the course began to also focus on the skills required to be a good mediator.  Trainers began to realise that merely describing the process was insufficient, participants also had to be taught and had to practice, the skills which make an effective mediator.   Consequently the length of the training courses began to grow from what were initially short half day courses or seminars in the early 1990’s to longer three or four day courses and, by the mid 1990’s, to the five plus days that we find the norm today.

International comparisons

It is perhaps this organic, practical development of mediation that particularly sets the UK mediator training development apart from other courses run in Europe and elsewhere.

By contrast, in many other jurisdictions particularly in continental Europe, once an initial group of mediators are trained, they often go on to form a mediators association, which invariable starts to become a professional regulatory body, setting out standards for training service delivery.  This is consistent with the civil law approach of requiring things to be clearly set down before it can occur.  Inevitably, the consequence is a much more rigid approach which,  in turn, leads to the content of mediator skills training being prescribed from very early stages and all providers having substantially the same content and indeed structure of training.

In Austria[3] for example the regulation of the training and accreditation of mediators is governed by the Civil Law on Mediation Training which sets out the content and scope of training in this field.  Training courses tend to comprise a minimum of 200 hours (most UK courses are 40 hours) of theoretical learning, in addition to practical modules.   The principal mediation providers were organised under an umbrella organisation, Plattform fur mediation and tend to be sector based, for example one covering the legal profession, another representing notaries and another tax accountants.  An Advisory Board ZivMediatG was then set up with specific rights and obligations to the Ministry of Justice provided for by law. A very similar situation is found in Germany.

The Netherlands[4] is unique in that it has one umbrella organisation Nederlands mediation Instituu’ (‘NMI’) which enjoys strong links with the Ministry of Justice.  It does not train mediators itself but accredits certain institutions to do so.

The experience in Bosnia and Herzegovina is perhaps instructive in this respect. Since 2003 Bosnia made impressive strides in the development of mediation in civil disputes, facilitated through a project funded by the IFC/World Bank.[5]  After initial training and workshops in mediation the Bosnian Association of Mediators was formed. This Association has developed in essence to become the quasi- regulatory body for the registration of mediators in Bosnia and Herzegovina, to the extent that in 2005 the Federal Government formally delegated this to the Association[6]. The registration process is clearly set out with little flexibility and requires core training, advanced training[7] and mentoring prior to being registered as a mediator. 

While, on the face of it, this would ensure the quality of mediators acting in Bosnia, this focus on a regulatory approach has two main drawbacks. The first is that it diverts the scarce resources of the Association to the supply side of mediation i.e. the registering of mediators.  Insufficient attention to developing the demand side of the equation, has resulted in mediation numbers dropping off in recent years and therefore insufficient mediati0ns for the mediators who are being registered.  Secondly, it is an overly restrictive approach, which does not allow for mediation to develop.  As the Association is the only organisation that can train and register mediators there is in effect a bottleneck that stifles the development of the field. If more organisations had a stake in the field then perhaps more competitive creativity would lead to increased use of mediations.

FOCUS ON THE PRACTICAL

The organic growth of mediator training in the UK is also related to another key distinguishing factor of training as compared with our continental neighbours.

Many civil law jurisdictions given there more prescribed nature, take a more academic approach to the training as can be seen in Austria, Germany and Holland as examples.

The content of courses often contain modules on theory of disputes/conflict.  In addition it is often universities that are the providers of training which results in a much more didactic approach to delivery of training than is the case in the UK. This is often accentuated by the fact that those delivering the training are from an academic background with little practical experience as commercial mediators.

This is, as has been seen, in stark contrast to the organic development of mediator training in the UK where, almost without exception, trainers are practising mediators themselves.  From the very initial days, those who were involved in kick-starting interest in mediation, and trained as the first mediators, also went on to practice as commercial mediators. It was also this group of people who took over the reins from the American trainers and began to develop local trainer capacity.

This more experiential approach was emphasised by the fact that training was not driven by academic institutions but by mediation organisations such as CEDR, ADR Group and latterly CIArb, who were mediation service providers as well as trainers.

Continued development – virtual circle

The result of this was an almost perfect virtual circle of learning: mediators informed learning and in turn the learning informed better mediation practice.

A good example of this in later course development is the role of the mediator in the negotiation process during the later stages of the mediation process. For many years training courses focussed much of their attention on the exploration phases of the mediation process and taught the more traditional facilitative model of mediator intervention. However over the years, trainers, all of whom were predominantly trained mediators themselves, began to feel that the mediator’s role in ‘coaching’ parties during the negotiation phase of a commercial mediation, was a crucial skill for any commercial mediator and this needed to be reflected in any training development for new mediators.  Accordingly course content was changed to focus more on this phase of the mediation and provide more skills practice for participants in managing offers and deadlock in the mediation.

The content of the training therefore tends to emphasise the practical application of the skills, which either the new mediator finds particularly difficult or which experience has shown are crucial for commercial mediators.   Delegates need to have a critical, theoretical and practical understanding of the importance of relationship, process and content skills for effectively mediating commercial disputes.

To achieve this, the course uses a number of different training methodologies to facilitate participants’ learning.

Ø       Theory

·         Theoretical pre-course reading

·         Presentation of information

Ø       Participative Skills exercises

·         Negotiation skills

·         Effective questioning

·         Use on non-verbal communication

Ø       Simulated role-plays of commercial disputes

·         Participants get to act as a mediator at least 4 times during the course as well as play the role of parties and lawyers to enable them to see a dispute form all perspectives

Ø       Group lead learning debriefs facilitated by trainer

·         In order to reinforce learning both from exercises and role play, trainers facilitate debrief sessions to draw out learning points

Ø       Personal coaching and one-on-one feedback

·         The high trainer ratio allows all learners to receive detailed coaching during their performance as mediators on role-plays. In addition at the end of these role plays, each learner is given three 15 minute private sessions of one to one feedback from experienced mediators

Ø       Reflective Learning

·         Learning logs

·         Post course self assessment

SETTING A STANDARD: COMPETENCY BASED ASSESSMENT

As mentioned earlier, mediation in the UK developed without any form of regulation in relation to training provision. This also meant that there was no ‘certification’ or registration system post-training that established a mediator’s competence. Given this ‘free-market’ approach and in a bid to establish a baseline of competence for mediators in order to instil confidence in the users of mediators, it was decided very early on in the development of mediation training in England, that courses should not only teach and allow participants to practice the skills and process of mediation but it should also provide the assessment of competence of the participants on the course.

It was a difficult decision to take, but one that has helped to herald UK accreditation as a worldwide recognised stamp of excellence and reinforce the UK as being one of the most robust providers (as claimed by those delegates in Hong Kong) of mediator training courses on the international scene.  For most providers, accreditation would turn on assessment of mediation skills, not just completion of the course.  This is not a token assessment as it is on many courses, but a genuinely tough standard that some fail to attain.[8] 

Accordingly assessment of participants to determine their competence to mediate commercial disputes is now an accepted part of all mediator training from the major providers in England.

Each provider assesses in a slightly different way. For example the Chartered Institute of Arbitrators separate their assessment completely from the teaching of the process and skills of commercial mediation[9], while CEDR provide the assessment as an integral part of one course incorporating both elements.  This assessment process has developed over the years initially with delegates assessed on one role-play only.  Over time this has become more rigorous with each participant being assessed twice on separate days.

The criteria used by a training organisation in assessing competence also differ and have been developed over the years by each organisation.  From the outset, those developing courses in the UK were clear that mediator skills are primarily practical and pragmatic in orientation.  Theoretical debates on models of mediation are important but tend to fade into insignificance beside the robustness required to play the third-party role effectively in a real case.  The teaching on UK courses is therefore predominantly around skills training and uses role-play in simulated cases as the dominant methodology.

No pre-requisite skills or professional background are generally required prior to attending the course, many of the skills for effective mediation being centred on practical skills. The power of the UK model is to allow the learner to enhance these skills, putting them into a framework which assists parties with the resolution of their dispute.

As an example when assessing delegates I use a set of competencies based around:

Ø       Relationship skills

o        Creates an environment conducive to mediation

o        Develops communication and interaction with the parties

Ø       Process skills

o        Establishes and maintains and effective working structure

o        Manages the process and phases of mediation

Ø       Content skills

o        Facilitates the parties in creating solutions and moving toward settlement

o        Facilitates momentum and progress through active engagement with the parties and the content 

To gain accreditation delegates must obtain a majority of ‘competencies’ (seven) across the 12 competency areas over the two assessment days.  If this level is not attained, delegates will only be invited to re-take if they have obtained at least one competency in each of the core skills i.e. Relationship, Process and Content. 

The latest development in assessment in recent years in England is in providers’ attempts to ensure consistency of assessment and quality assurance.  Led initially by the Chartered Institute and followed by other major training providers, most assessments are now video recorded, which allow for subsequent review to ensure consistency of assessment and also for the handling of appeals against non-award of accreditation. 

Continuing professional development

However it was recognised in the UK that competency-based assessment at the point of training in itself was not sufficient to ensure that mediators’ skills were current and up-to-date. Accordingly, in the mid 1990’s mediator training bodies began to establish continuing professional development (‘CPD’) requirements for mediators. These were not mandatory for mediators starting out their career but provided a framework against which mediators could benchmark their growing practice. 

CPD requirements were that over a two year period mediators had:

·         To be involved in a minimum of four days of mediations, two of which were debriefed with a fellow mediator

·         Undergone 16 hours of further structured training

·         Participated in further learning (e.g. attending seminars, conferences, published articles)

These were designed to support mediators who at that time did not have the wealth of experience that ten years on they now have.  CPD requirements have therefore evolved with their growing sophistication to provide extended training, senior mediator networking opportunities, etc whilst the more basic CPD requirements still prevails for the hundreds of new mediators trained every year.

It should be noted however that in an unregulated market such as the UK, mediators not working through any mediation organisation have no CPD requirements for them to keep their practice current - they operate on the basis of their reputations alone.

THE FUTURE

Expanding the marketplace

One of our greatest challenges since inception has been how to create a large enough marketplace to provide work for the mediators we have trained.  This remains a challenge for all providers and all the more so, ironically, as the marketplace grows and more and more mediators create new provider bodies.  A biennial mediation audit[10] showed the estimated size of the civil and commercial mediation market in the UK being in the order of 3,500 cases per annum (roughly 33% up on our 2005 estimate).

Despite this growth the market is increasingly dominated by a select few.  The 2007 Mediator Audit showed that there is a group of around 80 individuals who collectively are involved in nearly 80% of commercial cases (2005: 65 individuals held 70%) and within this group some 35 individuals are involved in 57% of all cases (2005: 50%).

Not useful statistics for marketing a mediator training course then!  Fortunately, and again because of the decision taken early on not to be bound by regulatory debates on certification but to develop a course with practical application to the needs of the client, training of mediators in the UK has always tended to be multilayered.  That is to say they respond not only to the training for ‘standards’ purposes but also training for basic life and conflict management competencies.  The debates on training for standards purposes have always sounded narrow and even sterile compared to what can be contemplated in running a mediator course.  Participants often emerge from the course much better negotiators, even as counsel.  Intensive practice as a mediator helps throw light on the narrowness of the typical negotiator’s perspective.  Participants have also told us that they find the course to be life changing – as I am sure our Hong Kong delegates will concur.  It helps them recognise the frequent failings of argument, adversarialism and partisanship.

Interestingly, in research done on the principal reasons for delegates attending mediator training courses in 2007[11], only 59% gave wishing to mediate as their primary driver.  10% were there to improve their professional skills and 31% their general communication and conflict handling skills.

We strongly believe that the future lies in these very skills.  There will always be a need for the litigation-alternative mediation, just as litigation has its own valuable place in civil justice regime.  However, increasingly conflict management skills are emerging as valuable tools in themselves, the ultimate aim being to prevent day-to-day conflict escalating into a dispute.  Organisations can do much more to embed systems into their business practices to assist in this aim.

The regulation debate

As has been seen, the UK mediation market has avoided statutory regulation.  It was established by practising mediators for essentially pragmatic aims and early promulgators believed regulation would constrict its development and turn it into the beaurocratic disaster, which many now view has befallen arbitration. 

This is not to say that this debate has not dogged mediation development in the UK over the past 20 years.  It has, and still does today.  The Civil Mediation Council (‘CMC’) was set up five years ago with the support of 35 ADR providers, professional bodies, independent mediators and practitioners and with the objectives to focus on legal reform and education as well as acting as a focal point for information.  It is now going through an internal debate as to whether or not to standardise accreditation and to act as regulator of the field.

Dr Karl Mackie, Chief Executive of CEDR and appointed Deputy Chair of the CMC is leading the counter debate.  In his response to the consultation process on standardising accreditation[12] Dr Mackie said:

‘I suggest at a philosophical/strategic level that we should positively become a standard-bearer globally to challenge the trend to bureaucratisation of mediation by way of over-definition of standards. We should support the evolution of ideas and variety of training approaches on a free market basis because of the core values in our field of flexibility and adaptability.  We should be proud that we can celebrate diversity and the flexibility of the mediation process where others are tempted to narrow its boundaries into mechanical formulae.’

This is not to say that there is not a valuable role for such a body as the CMC.  Dr Mackie has suggested that there is a very real need for a registration system that offers a public information directory of organisations stating that they commit to good practice as set out in Codes developed by its members (which should emphasise flexibility of mediation practice rather than one model); an independent complaints review process; and for public bodies to be encouraged to use CMC Registered providers for these reasons. 

With the emergence of a truly global business world, there are inevitably more and more cross border mediations.  This obviously brings about another debate on regulation and standards as different cultures require different models of good practice. 

Organisations such as the International Mediation Institute, established a few years ago are seeking to create common standards of practice across borders.   We can only continue to have the debate and hope that common sense prevails in maintaining high standards across borders without the need for restrictive definitions.

Another significant development in the regulatory debate is the publication earlier this year of the European Directive on mediation in civil and commercial matters (albeit restricted to cross border mediation).  

Within it, mediation is defined as:

‘A structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a member state.’

At the start of the consultation process the Directive sought to be quite prescriptive in the implementation of common standards, formal registration schemes and a much tighter regulatory environment.   However during the consultation period it became clear that there was little support for this and the published Directive provides that quality standards for mediators and mediation providers are dealt with by requiring Member States to ensure that voluntary codes of conduct are published and adopted, and that mediation training standards are encouraged.[13]

Given that the UK has some of the most stringent training standards, codes of practice and highly skilled mediators, and that it has done this largely through organic development under a self-regulatory environment, the EU Directive’s reluctance to impose a formal registration scheme is to be welcomed.

[A version of this article first appeared in Nederlands Vlaams Tijdschrift voor Mediation en Conflictmanagement in December 2008]

End Notes

[1]  Magazine article: International Financial Law Review December 1989 ‘Are we ready for ADR in Europe’ by Eileen Carroll 

[2] The well known American mediator, Eric Green, was used in early CEDR training, complemented by Dr Karl Mackie, who had in 1990 been appointed CEDR’s Chief Executive

[3] The EU Mediation Atlas: Practice and Regulation – Chapter 1

 

[4] The EU Mediation Atlas: Practice and Regulation – Chapter 11

 

[5]  For more information on this project see:

http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/ADRpresentationApril18.ppt

 

[6] For information on mediation in Bosnia generally see also http://www.cidra.org/articles/mbh2/mediation_bosnia_herzegovina_01.htm

 

[7] see: http://www.umbih.co.ba/eng/services/services.htm

[8] Pass rates vary among providers.  CEDR’s current average is 75-80 per cent pass rate at first try and 90 per cent following re-take.

 

[9] Attendance at the five-day Mediation Training Course allows you to apply to become an Associate of the Chartered Institute of Arbitrators.  Successful completion of the two-day Mediator Training Assessment grants Accredited Mediator status and the delegate to apply to become a Member of the Chartered Institute of Arbitrators.

 

[10] The Second Mediator Audit 2007 undertaken by CEDR

[11] Research into feedback from CEDR Mediator Skills Training Courses during 2007

[12] CMC Accreditation Paper was published in draft format in January 2009

[13] Article 4 – European Directive on mediation in civil and commercial matters

Biography

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James South is a CEDR Director and responsible for its training programmes including Mediator Skills.  A mediator and a New Zealand trained barrister, over half of James work is outside the UK and he regularly acts as trainer and consultant expert in different jurisdictions. In 2008 alone he worked in Austria, Bosnia Herzegovina, Belgium, Botswana, Croatia, Hong Kong, India, Ireland, Morocco, Pakistan, Spain, South Africa and Ukraine. 

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Website: www.cedr.com

Additional articles by James South

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Amin  Dr. Talab,   Vienna A	office@comeon.at      04/16/09
Mediation in Austria
Dear James South - dear Readers Your article discusses a topic that all of us mediators touch each now and then - especially those, like myself, who have developed training programs or teach on the subject. My experience with the regulatory influence, and the corresponding minimum requirements leads me to a quite different solution. Actually, the majority of participants have to even prove 365 hours of learning mediation to get approved by the ministry of justice as registered mediators. They undergo quite a complex curriculum, comprising of all the subjects you write about and quite some more practical training. Only after finishing that are they allowed to be registered in an official list, which is publicly disclosed even on the ministry´s website. They are then entitled as well as obliged to call themselves "registered mediator". However, the term "mediator" itself is not protected. So, just like in the U.K (as I understand it) and many other countries, pretty everybody can call himself mediator. In the area of business mediation, there is no limitation for anyone to work as mediator. Literally thousands of registered mediators have chosen to do the latter. To me the market itself is quite a good method to value one or the other offer.So I would say the market has given a clear answer to whether mediators do like government regulation and thus protection to their profession. We´ll see the development in the future since the Law on Mediation is quite new and I would be happy to continue that discussion on some other issues that are worth rising. For now greetings from Vienna Dr Amin Talab Add New Comment

RATUL ,   Guwahati,Assam IN	04/15/09
Interesting to learn
By reading the article on the historicle development of Mediation in U.K.,training methods and all ,i have found it to be very very useful.Hope in the near future some more resourceful articles on Mediation will come up for advocates like me in India.With Thanks.... ratulgoswami@gmail.com Add New Comment

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