The Mediation Clinic attached to the University of Strathclyde (“The Mediation Clinic”) in Glasgow, Scotland, recently won the ‘Community Contribution Award’ at the Scottish Legal Awards 2021. This feat makes it back-to-back accolades for the student-cum-alumni driven initiative that has served hundreds of disputants at 16 of Scotland’s 39 sheriff courts. Jonathan Rodrigues, an alumni of The Mediation Clinic, speaks to Charlie Irvine, a senior teaching fellow at the University of Strathclyde, who founded the clinic in 2012 with nothing but a team of mediation-hungry post-graduate students.
Jonathan: In one of your writings, you say there was neither a plan nor a budget. So, what was the inspiration behind setting up The Mediation Clinic?
Charlie: The students. Very early on, they started saying roleplay is great but real-life practice would be better. They also wanted to start building their CVs – the first graduates to get jobs in mediation had cut their teeth volunteering in The Mediation Clinic.
Another source of inspiration was meeting David Dowling of Chapman University's Mediation Clinic at the UK Mediation Competition. I remember thinking: 'That's a great idea!'
Jonathan: A decade of selfless giving. Reflecting upon its initial years of operations, do you believe The Mediation Clinic has achieved the goals it set for itself?
Charlie: The Mediation Clinic has exceeded any expectations I had at the start. In the first couple of years we were trying to convince law students in Strathclyde's large, busy law clinic to suggest mediation to their clients. Despite lots of training and expression of goodwill, very few did. We had fewer than six cases a year.
It was only when we started our relationship with the local court that things changed. With the help of some really experienced mediator friends, our students were able to co-mediate and get good results for the parties in small claims. When secondary legislation changed court rules in 2016, our reputation was such that senior judiciary approached me and asked if we could provide mediation across their areas. Finally, although it has been a terrible time, the pandemic has spurred us into more innovation. We quickly trained in online mediation and now cover almost half the courts in Scotland. Last year, our mediators conducted 324 intake calls with parties and provided 125 mediations, with a settlement rate of just under 60%.
As well as sheer numbers, The Mediation Clinic has grown in two significant respects. First, we've built a cohort of volunteers, particularly alumni, who are thoughtful, reflective practitioners willing to mentor newer mediators. We've had to develop a whole edifice of CPD, reflective practice sessions and written review forms to ensure that we're offering a high quality service. Second, I now have an experienced and diverse board - again, the move to online working has meant we can have board members from around the country and beyond (last year we had members in Canada, India and Italy). This becomes crucial as an organisation expands and grows.
Going back to our goals, we've given a lot of students a taste of real-world mediation. There is no substitute for this - the work is so much more exciting, though daunting! We've also provided a service to the local community, providing access to justice for unrepresented people and a professional service for all our clients.
Jonathan: Congratulations on two consecutive recognitions by the Scottish legal community. From your personal interactions with the stakeholders, what has been the feedback from the lawyers, sheriffs and the people of Scotland?
Charlie: Sheriffs (judges in Scotland) who actually referred cases to mediation have been positive and grateful. I think most didn't know what to expect and were pleasantly surprised to find the mediators grasped what was needed in small claims and, more importantly, many of the cases settled without needing further court time. Others, however, seem to disapprove of mediation altogether and have never referred any cases. The independence of our judiciary means this sort of variation is likely until clearer rules are passed, probably in primary legislation.
Lawyers have been more equivocal, though I sense they are warming to mediation. Again, those who regularly use The Mediation Clinic's services tend to be positive and to approach their role professionally. Some bring previous experience of commercial mediation, but I am still surprised at how many lawyers seem anxious about using mediation and/or unclear about what it can potentially achieve.
And finally, parties. Here again, there has been a good deal of wariness, with mediation being unfamiliar or implying that they're expected to compromise. Once people have experienced mediation the feedback is overwhelmingly positive. Even those who don't reach a settlement tend to praise the mediators for their clarity and impartiality. It's interesting that people are more open to mediation after they've done it. This suggests that judicial encouragement is a good idea, as much of the resistance may stem from unfamiliarity.
Jonathan: Globally speaking, not every post-graduate mediation course has an annexed mediation clinic. As an academic, who also manages a private mediation practice, would you strongly advocate for a mediation clinic at all universities that run courses? Is there an alternative?
Charlie: As time goes on I find it harder and harder to envisage teaching mediation without a clinical element. It is fundamentally a practical discipline. When Carrie Menkel-Meadow spoke at our Mediation Clinic conference in February she described a similar belief. As soon as she started teaching mediation to law students in the 1980s she gave them clinical experience.
As for alternatives, the world is changing rapidly and I recognise the need for flexibility. Online mediation opens more doors to observing real-world mediations - it's less intrusive to have one or two students on the call with their screens off, once introductions have been made. However, this requires experienced mediators to make the effort to mentor the next generation, a challenge I'm happy to repeat. Read Further, as I elaborate on this point.
Jonathan: The Mediation Clinic has evolved tremendously during the pandemic, successfully adapting to the challenges of the pandemic. Was it a challenge getting the courts to accept virtual mediation?
Charlie: Online mediation, and more broadly ODR, has been around for a while, but the pandemic suddenly forced us to make it work for everyone. The Mediation Clinic immediately offered training so our volunteers were confident with Zoom - in my opinion by far the best platform for virtual mediation. Since then our mediators have become adept at what we call 'remote' mediation - see below on telephone mediation. Benefits include convenience, flexibility (much easier to arrange and rearrange meetings), geography (we now have mediators from other parts of the world assisting The Mediation Clinic) and a general sense that people are a bit more relaxed in their own space.
We shouldn't neglect the humble telephone. Some people experience digital exclusion, through lack of broadband or simply not having equipment, and phone is a familiar means of communication. Settlement rates are similar to Zoom, though still a little lower than face to face.
The courts in Scotland have shown no difficulty whatever in accepting virtual mediation. I think they are so overwhelmed as a result of Covid-19 changes that they are simply grateful that The Mediation Clinic helps deal with their caseload.
Jonathan: Co-mediation can be tricky business if not done right. What do you treasure the most about the experience of co-working – professionals and students working together as a team?
Charlie: Two heads are better than one! When I was a learner mediator I know I improved most rapidly when I had the chance to talk things through with someone who knew exactly what I was talking about. The Mediation Clinic wants to develop reflective practitioners, and talking to our co-mediator is the most immediate form of reflection. It is also great when lead mediators say they're ready to step back and let the student mediator run more of the session - the student can take that authoritative role while still having the reassurance of the experienced person in the background.
Jonathan: Now, operating virtually, The Mediation Clinic is capable of opening itself to its alumni across the UK and beyond, which can be a huge blessing considering Glasgow's diverse population. How do you feel about operating via a hybrid model, as business returns to in-person settings?
Charlie: I believe things will not exactly return to what they were before. Some people may prefer face-to-face but the evidence so far is that our clients have become accustomed to working remotely. The Mediation Clinic has signed the Green Pledge for mediators, committing us to reducing our carbon footprint in the long term. I hope we'll continue to work with diverse people.
Jonathan: The Mediation Clinic is no longer a little idea grounded in Glasgow, it is taking giant strides beyond George Street. Are there new goals for The Mediation Clinic? How would you like to see it grow over the immediate future??
Charlie: Gosh, that's the difficult 'strategic vision' question! As usual, people in my position do a lot of worrying about day to day issues like having enough volunteers, maintaining quality and finding a sustainable funding stream. Standing back, though, I can think of two points I'd like to reach:
A clinical dimension being seen as essential for all mediation training, not just in academic institutions. We recently ran a conference to support mediation clinics in the UK, and it seems logical for that to extend across the world.
Pro bono mediation sitting alongside well-remunerated work as part of a 'mixed economy.' This will lay the foundation for an enduring and respected profession. We need to create a career path where younger mediators learn their trade and more experienced people foster the next generation.