United Kingdom Journals

Regulating ADR- The Scottish Experience

Bryan Clark and Richard Mays

School of Public Administration and Law
The Robert Gordon University
Aberdeen

Copyright © 1996 Bryan Clark and Richard Mays.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

Between the months of January and March 1996, a survey was undertaken to examine the nature and extent of the application of Alternative Dispute Resolution (ADR) within the civil justice sphere within Scotland. The study further sought to identify key issues of policy and research relevant to the future development of ADR in Scotland. Some 67 field interviews were conducted and over 40 solicited questionnaire responses obtained from those involved or interested in ADR processes in and around Scotland. This study represents the first major empirical study of attitudes to ADR in Scotland. Respondents to the study included, accredited mediators, ADR service-providing organisations, academics, business enterprises and other interested parties. The research commissioned by the Scottish Office Central Research Unit, was undertaken by the Robert Gordon University, Aberdeen.(1) In this article we analyse the views of respondents in relation to the question of the regulation of ADR activities.

Contents

Introduction

ADR in Scotland - Current Regulatory Controls

Respondents' views on mediation

Regulation unnecessary

Regulation required

Regulation and Lawyer-mediators

Difficulties in standardised regulation of ADR practice

Self-Regulation

Conclusion

Bibliography

Introduction

In common with the rest of the UK, it has been recognised that there is very little regulation of ADR activities within Scotland at present (Mackay 1995, p 159). The only regulation currently in place is provided through the control of ADR service-providing organisations themselves, the threat of withdrawal of financial support for publicly funded ADR providers and by market forces (ibid.). The vexed question of the extent that ADR practice needs be subject to external regulatory controls has been posed by academic writings in the UK (Grosskurth 1996, p 184; Raitt 1995; Greatbach and Dingwall 1993) and has been the subject of a robust scholarly debate in other jurisdictions where ADR is more established. (2)

It has been suggested that the practice of mediation and other ADR processes in the UK would benefit from the establishment of a national umbrella organisation whose remit would be to co-ordinate education and training, provide regulation and accountability for those entering ADR practice and act as a monitor on the quality of service being provided (Clark 1996a). This line of argument continues that as ADR develops, such a regulatory framework would serve to protect the interests of participating parties from negligent, incompetent or unscrupulous ADR practice. Given the diversity of professional backgrounds and combating interests of those currently involved in ADR, across the spectrum of dispute areas, it may be suspected, however, that the imposition of a national body purporting to regulate all mediation activity would be fraught with intractable difficulties (for a resume of current ADR activities see Mays and Clark 1996). Providing a Scottish perspective, this article analyses the inferences of the respondents to our study in relation to this problematic and as it transpired, hotly-debated issue.

Whilst it is important to note that the remit of our research was to focus on issues relevant to the development of ADR in Scotland, the present situation as regards the regulation of ADR activities north of the border, in many senses mirrors the UK-wide picture in this respect. Many of the issues raised in this study have a generic UK application or at the very least have implications for the rest of the UK. We are unaware of any similar study of attitudes into regulation elsewhere in the UK and as such our small study offers the first insight into the views and attitudes of one side of the legal divide in the UK. If UK standards in the regulation of ADR activities are to be developed, the views of ADR 'practitioners', North of the Border will doubtless be of crucial importance in any such step along that road.

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ADR in Scotland - Current Regulatory Controls

Within the commercial sphere in Scotland the majority of mediators are accredited by one (or more) of three ADR organisations. The Law Society of Scotland's mediation service ACCORD (3) accredits solicitors who have been trained in mediation techniques by either the Centre for Dispute Resolution (CEDR) (4) or the Bristol-based ADR Group. CEDR accredits professionals as mediators on successful completion of their course. Likewise, the Mediation Bureau(5) accredits professionals as mediators on successful completion of their training programme. In addition to these organisations, the British Academy of Experts also provides training and accreditation for seeking to enter mediation practice. The Faculty of Advocates(6) has also accredited a panel of eight Senior Counsel (including the Dean of the Faculty) trained in mediation techniques (7) and The Chartered Institute of Civil Engineers maintains a list of accredited conciliators. There may be others who work privately. There is no requirement of accreditation with any professional body before entering mediation practice. Indeed, as Anne Grosskurth wryly observed, "[a]nyone can hang a shingle outside their front door advertising mediation services" (Grosskurth 1996, p 184).

Once accredited, those entering mediation practice are not subject to any tight regulatory and supervisory controls of the accrediting bodies. Most of these organisations do, however, issue codes of standard practice to be followed by those accredited as mediators.(8) Academic writings have been critical of both the fact that there is no universally accepted code and that there is little means to monitor adherence to approved practice (Raitt op cit; Dingwall and Greatbach op cit; Clark op cit).

Within the sphere of family disputes those practising mediation are either family law specialists accredited by the Law Society of Scotland through CALM(9) or those engaged by the Family Mediation Scotland (FMS) (10) affiliated regional mediation bodies. The FMS affiliate mediators are subject to the internal supervision and control of the regional mediation body and ultimately the umbrella organisation, FMS. The lawyer-mediators are issued with codes of standard practice from, and accountable to CALM, and as lawyers to the Law Society of Scotland.

Mediators practising within the community/neighbourhood dispute area are subject to the internal control and supervision of their local mediation organisation (see Clark 1996b).

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Respondents' views on mediation (11)

From our research we have been struck by the diversity of opinion that the respondents to the study have advanced in relation to the question of regulating ADR activities, with attitudes ranging from complete laissez faire, to the imposition of tight regulatory and supervisory controls.

Regulation unnecessary

Within the commercial dispute area, given the voluntary and without prejudice nature of mediation ,(12) some commentators considered that there was no requirement for the regulation of mediation practice. Typical comments expressed included:

"we need to shy way from this [regulation]...the trust involved in mediation and the fact that parties are free to walk away from the mediation session begs the question as to why we need any regulation." (int. clm, Aberdeen)

"as long as mediation is a voluntary and without-prejudice process then I don't think there is a need for any tight regulation." (int. clm, Dundee)

Other respondents (in particular lawyers-mediators) were of the opinion that over-regulation at this time would be likely to inhibit the development of this emerging dispute resolution mechanism.

"Lets develop a practice of ADR, analyse it and then look at this issue. You can't regulate until you have seen the experience." (resp. clm, Edinburgh)

"We wouldn't want to slow down ADR through over-regulation and professionalisation." (int. clm, Kirkaldy)

"We don't want to bring in a lot of detailed rules whereby mediation might end up like arbitration." (int. clm, Aberdeeen)

Another opinion expressed was that market forces would negate any need for regulation.

"In the commercial field, market forces will dictate... parties will only refer their cases to reputable mediators." (int. clm, Edinburgh)

It was recognised, though, that at the lower end of the market and certainly where parties will not be free to choose from the available ADR services, such forces may exert very little control over mediation activity.

"The problem with the free market idea is that this won't work at the lower end." (int. spo)

"Regulation depends on who is using the services... on the commercial side, market forces will control sufficiently... if however, those without much commercial and legal knowledge are using mediation, some form of regulatory protection will be required." (int. clm, Edinburgh)

Another argument advanced by one commentator within the community/neighbourhood sphere was that the implementation of a tight regulatory framework within the ADR field could lead to an unnecessary professionalisation of mediation activity, which could detract from the long-term goals of grass-roots mediation activity to disseminate the 'mediation message' and allow the parties to mediate themselves (int. cm). This notion has been mirrored in academic writings which have suggested that to over-regulate and professionalise may result in the exclusion of 'lay people', many of whom may have "excellent mediation skills" (Brown and Marriot 1995, p 382).

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Regulation required

A number of commentators did, however, reflect the academic concerns relative to the current arbitrary and piecemeal development of ADR, and emphasised the need for standardised regulation, supervision and monitoring of approved practice, at least within individual dispute areas.

"A central regulating body is necessary....[Such a body] would be able to regulate its members, perhaps by setting up a model of self-supervision... Accountability is more difficult, as lawyer [mediators] are already accountable to the Law Society, but I see no reason why they cannot be accountable to another body as well." (resp. flm, Alloa)

"[Regulation and Accountability] are both vital, especially when ADR is still in its youth. The public has to know what and who they are getting and what to expect ADR to do and cost for them... Imposing regulations makes it more likely that formal groups/organisations will develop rather than encouraging individual and piece-meal enterprises." (resp. flm, Ayr)

"The Law Society regulates...Legal Practice with numerable rules and regulations but there is not the same set of rules and regulations for mediators...there [will] be other mediation organisations formed and therefore, it is essential that some form of governing body tries to take a hand in the area." (resp. clm, Glasgow)

"The lack of regulation is a big worry...we need a review body...there needs to be some control over those acting as mediators...there are so many different types [of mediator] at present and no hard and fast views of what is required." (int. arbitration and construction law expert, Glasgow)

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Regulation and Lawyer-mediators

Countering the criticism that the lack of any regulatory framework and real accountability within mediation practice may cause inadequate protection for parties participating in mediation (Raitt op cit), lawyer-mediators across both the commercial and family dispute areas, were keen point to the fact that as members of the legal profession, they were already subject to the standards of practice, regulation, control and disciplinary sanctions of the Law Society of Scotland. This in itself, married to the issuance of codes of practice from CALM and ACCORD was widely perceived (by lawyer-mediators) as providing sufficient regulation and control over their mediation activities and thus would afford adequate protection for participating parties. In addition to this, lawyer-mediators pointed to their own professional indemnity insurance (13) which would extend to cover their mediation practice. Typical comments in this respect are as follows:

"CALM members are regulated by CALM and accountable...by virtue of CALM's constitution and Code of Practice. In addition, CALM members are regulated by and accountable to the Law Society of Scotland....This is statutory regulation and accountability." (reps. flm, Alloa)

"I am happy that the overall responsibility for regulation and accreditation of a solicitor mediator is done by the Law Society of Scotland as they...ensure that a high standard is maintained by solicitors in the areas in which they are practising...the public knows that if a solicitor requires to be called to account, it is being done by a professional body 'with teeth'....The compulsory indemnity insurance gives further guarantee as this covers all aspects of a solicitor's work." (resp. clm, Edinburgh)

"If we [lawyer-mediators] do mess up, then there are solutions...there is a [Law Society] complaints procedure and if we are negligent we can be sued....If we are plain awful...then we can be complained about to the Law Society and there are sanctions that can be taken against us...e.g., compensation, reduction of fees and loss of accreditation." (int. flm, Edinburgh)

Some respondents did recognise, though, that since not all mediators were solicitors, this might raise further regulatory questions.

"ADR could get a bad name if non-solicitor mediators, unregulated and uninsured, began to operate and to be preferred on the grounds of cost." (resp. flm, Inverkeithing)

"I think that the ACCORD Code of Practice is probably sufficient for solicitor-mediators, who have other professional rules/standards with which they must comply. For others something else might be required." (resp. clm, Glasgow)

In relation to the issue of non-lawyers mediating within the family dispute area, one respondent did suggest that "[FMS affiliate mediators] are not subject to the same strict codes of operation as solicitors" (int. ac). FMS respondents, however, countered such criticism and emphasised the thoroughness of their own internal regulatory and supervisory controls. This sentiment has been echoed by June Oswald, both a lawyer and an FMS mediator in a recent article (Oswald 1996). Indeed some respondents harboured misgivings about the legal profession's ability to regulate mediation activity (int. ac and int. cm). This notion has been mirrored in academic writings which have questioned the propriety of the legal profession to regulate an activity which is not, itself, mainstream legal practice (Roberts 1995).

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Difficulties in standardised regulation of ADR practice

One of the key intractable difficulties recognised in setting up a national body to regulate and set standards of practice in respect of mediation activity, is the fact that such an organisation would need to cut across the frontiers of individual professional groupings. Such political difficulties are exemplified within the family mediation sphere. Within this dispute setting, the UK College of Family Mediators (a predominately non-lawyer grouping) is endeavouring to set uniform standards and is seeking to regulate family mediation practice throughout the UK as a whole. The lawyer-mediator grouping, CALM, is not, however, party to this on-going practice-development initiative and the inference can be drawn from the responses of CALM personnel to our study, that it is unlikely that they will be encompassed within the UK College framework. Our research has suggested that any attempt to regulate all mediators within the family sphere under the auspices of one organisation may be problematic. Typical responses of CALM mediators to such a proposition are as follows:

"In theory, some sort of umbrella organisation to regulate mediators is a good idea, but this would be difficult in practice....I don't know how non-lawyers could regulate lawyers." (int. flm, Aberdeen)

"The standards the UK College have set up are inappropriate for lawyers in practice." (int. flm, Kilmarnock)

"[The UK College initiative] is not something [lawyers] could be involved in...it is a service based vision...they are talking about 70 hours training and the granting of provisional licences, lawyers could not meet these requirements, we have other work on our plates." (int. flm, Kilmarnock)

"The UK College initiative is making life difficult for everyone and closing options....They are trying to set the same standards for everybody....We must remember though, that solicitors already have experience, qualifications and intellectual ability...not everyone is starting at the same level." (int. flm, Invernesshire)

It is evident from the above responses that CALM mediators do not believe that it is necessary (or possible) for them (as lawyers) to be subject to the same regulatory and training provisions as others seeking to operate as mediators within this field.

In line with such a philosophy, some respondents were of the opinion that one regulatory body for solicitors and one for non-solicitors would be an apposite option.

"I think that solicitor-mediators could be regulated by one body, but it will be difficult to have a body which regulates all mediators." (int. flm, Aberdeen)

"There is a need for regulation because we might have the situation where organisations profess to be mediators but actually do something different. We may end up though with one regulatory body for solicitors and one for non-lawyers. There may not be one regulatory body, but we should aim for consistent standards." (int. flm, Kilmarnock)

Other respondents, recognising the inherent difficulties in regulating across professional boundaries, suggested other measures for ensuring quality control within mediation practice. One considered viewpoint was:

"A co-ordinated regulatory body would be difficult, given that mediators are drawn from a diverse range of professional backgrounds....Perhaps the all-important aspect is to develop standard selection and training standards which do need some control... a standardised effective complaints procedure might be something which would instil public confidence in the." [ADR] system (int. ac)

"Perhaps it is not so much regulation which is required but good training and mentoring, with the facility to check out and deal with complaints." (int. spo)

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Self-Regulation

Another recognised problem associated with the independent regulation of mediation practice was the question of who would regulate the regulator (int. clm, Glasgow)? Some respondents expressed the view therefore, that if ADR needed to be subject to regulatory controls, then it should follow a self- regulation model whereby standards could be established, maintained and developed within the emerging profession itself (int. clm, Edinburgh). To this end, the body of mediators trained by the Mediation Bureau have recently launched a self-regulating Association of Mediators. It is anticipated that this body will develop and set its own standards of practice and will be 'owned' and co-ordinated by the body of mediators themselves (int. spo).

Within the sphere of community/neighbourhood mediation, the service providing organisation, Mediation UK ,(14) is seeking to standardise recruitment, selection, training and regulation of mediation activity therein. Given, however, the embryonic and fragmented state of community mediation within Scotland, any external regulation over their activities would seem an unlikely scenario at this time. SACRO ,(15) however, who line-manage two of the existing community schemes in Scotland ,(16) do facilitate a policy of exchange of best practice throughout SACRO projects (int. spo). A 'Mediation Network' has also been established under the auspices of Mediation UK to facilitate the communication of ideas and provide inter-service development and support, between the community mediation schemes in Scotland (int. spo). It is anticipated that this will provide a framework under which standard policy and approach can be adopted in the longer term.

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Conclusion

From our research it is evident that there subsists a diverse range of opinions on the subject of the regulation of ADR practice. Some say that it is too soon for external regulation, and that ADR must be allowed to continue its embryonic journey, unshackled by regulation and proceduralisation which would stifle its scope for continued growth and prosperity. Others warn that to regulate and over- proceduralise would run contrary to ADR's undoubted merits of creativity and flexibility (this sentiment was expressed in the Brown Report 1991). Conversely, other respondents argued that the proper regulation of ADR activities is essential, to ensure uniformity in approach, and to guard against piece-meal, ad hoc, arbitrary progress which may weaken the scope for ADR's future development in Scotland. A number of respondents, however, canvassed the view that standardised regulation throughout mediation practice is no more than a theoretical fancy, a practical impossibility in a world awash in a sea of conflicting interests and combating agenda.

It is, therefore, evident from the research that the 'jury remains out', as regards the question of regulation. In our opinion, it may be tempting to suggest that given the limited practice base of mediation within the commercial sphere married to the notion that the `free market' will route out any malpractice, no external regulatory measures are required at present in this area. However, if mediation practice becomes perceived as a 'poor relation' to other methods of dispute resolution then both enthusiasm and demand for mediation services within the commercial arena is unlikely to proliferate. In our view, at the very least it would seem prudent to call for all of those offering mediation services within the commercial sector, regardless of professional background, to be covered by professional indemnity insurance which would ensure that there would be some recourse for dissatisfied parties.

Within the family mediation sphere, one might predict that a two-tier regulatory system may become a reality within the UK. The UK College of Family Mediators' standards in recruitment, training, supervision and regulation are likely to be embraced by all except those offering a mediation service within their existing legal practice. Standardisation of mediation practice within the family lawyer- mediator sector throughout the UK may well follow, given the recent establishment of the British Association of Lawyer Mediators (BALM). This uneasy co-existence may be tested to the full, however, when the Law Reforms of the Lord Chancellor concerning mandatory mediation in family disputes takes hold in England and Wales (White Paper 1995). If the Legal Aid Board decides to award franchises to only those mediation services affiliated to the UK College then this may hold severe repercussions for those involved in mediation practice north of the border, given the possibility that, similar, far-reaching reforms may in time be implemented here in Scotland.

Within the community/neighbourhood sphere, given the fact that only a few isolated mediation schemes have thus far, arisen within Scotland, it does seem unlikely that any standardised regulatory framework could be implemented at this time. New independent ventures in the community area may spring up in the near future and it would seem inappropriate to stifle such initiatives by standards which could not possibly be met. If, however, mediation within this area, backed by consistent centralised and local funding, were to proliferate and become a mainstream feature of community life in Scotland, then a measure of consistency and recognised approved practice would doubtless be desirable. Perhaps, a body such as Mediation UK, responsible as it is for a number of community mediation programmes throughout the UK, would be best placed to co-ordinate such an initiative.

ADR is in its infancy in Scotland - a situation which reflects the profile of ADR within the UK as a whole. As we observed earlier, many of the issues discussed in this article will doubtless be of relevance to the future development of ADR activities across the UK as a whole. While it remains to be seen whether the current moves afoot to standardise the regulation of ADR within the family and community spheres throughout the UK will reach fruition, given the differentials between the respective legal and social landscapes north and south of the border, it is questionable, however, whether the regulation of ADR activities will develop along UK-wide lines in all dispute areas.

As a final thought, it strikes us that the more that ADR processes become enmeshed within the legal framework or become part of the substantive law, then the more pressing the need for standards in practice to be set and adhered to becomes. Where ADR is a wholly private and voluntary arrangement then regulation may not be a priority. However, where, for example, the court refers cases to mediation, or a stipulation is made that recourse to mediation becomes a precursor of a legal aid certificate, then to provide adequate protection for disputing parties, it may be desirable to establish a regulatory body with `real teeth' to regulate and monitor approved practice, provide real accountability for those operating as mediators and ensure protection for mediating parties.

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Bibliography

Brown, H and Marriot, A (1995) ADR Principles and Practice (London: Sweet & Maxwell).

Brown Report, (1991) Report to the Courts and Legal Services Committee (London: Law Society).

Report of Canadian Forum on Dispute Resolution (1995) Charting the Course (Department of Justice, Canada).

Clark, B (1996a) 'Alternative Dispute Resolution: The Next Step Forward?' 64 Scottish Law Gazette 19.

Clark, B (1996b) 'Mediation: Resolving Conflict within Local Communities' 64 Scottish Law Gazette 63.

Greatbach and Dingwall (1993) 'Who is in Charge? Rhetoric and Evidence in the Study of Mediation' Journal of Social Welfare and Family Law 367.

Grosskurth, A (1996) 'Mediation: forming a view' in Smith, R (ed) Achieving Civil Justice, Appropriate Dispute Resolution for the 1990's (London: Legal Action Group) p 184.

Mackay, R (1996) 'The Future of Alternative Dispute Resolution in Scotland' in Moody, S and Mackay, R (eds) Green's Guide to Alternative Dispute Resolution in Scotland (Edinburgh: W.Green/Sweet & Maxwell) p 159.

Mays, R and Clark, B (1996) Alternative Dispute Resolution: Report prepared for the Scottish Office Central Research Unit (Robert Gordon University, Aberdeen).

Oswald, A (1996) 'In Defence of Family Mediation' 231 Journal of the Scottish Legal Action Group 20.

Raitt, F (1995) 'Mediation as a form of Alternative Dispute Resolution: a rejoinder' 40 Journal of the Law Society of Scotland 182.

Roberts, S (1995) 'The Lawyer as Mediator' Family Law 637.

White Paper (1995) Looking to the Future: Mediation and Grounds for Divorce (Lord Chancellor's Department).

Footnotes

(1) The full report is available from the 'Access to Justice' research unit at the Robert Gordon University, School of Public Administration and Law, 352 King Street, Aberdeen, AB9 2TQ. Back to text.

(2) For example, in the USA, Canada and Australia. For an interesting discussion of these issues in Canada, see The Report of the Canadian Forum on Dispute Resolution, 1995. Back to text.

(3) The Law Society of Scotland has since July 1994 promoted an ADR service, ACCORD. Back to text.

(4) CEDR, a non-profit making organisation, was set up in London in November 1990. It is arguably the 'flagship' commercial ADR organisation in the UK. Back to text.

(5) The Mediation Bureau was established by the former Scottish Sheriff, Marcus Stone as a limited company in June 1994. Back to text.

(6) The regulatory body of the Scottish Bar. Back to text.

(7) The Faculty of Advocates Mediation service was established in April 1994. Back to text.

(8) The Mediation Bureau is currently devising codes of practice for their mediators. Back to text.

(9) In December 1994, a group of family law specialists set up the family mediation body, CALM (Comprehensive Accredited Lawyer Mediators). Back to text.

(10) Family Mediation Scotland (FMS), established in 1987, is an umbrella organisation which supports and promotes a network of regional affiliated family mediation services throughout Scotland. These services provide a free mediation services to the public to resolve issues arising from separation and divorce. Back to text.

(11) Key - designations of respondents included in the text as :

int. = interview;
resp. = questionnaire response;
clm = commercial lawyer mediator;
flm = family lawyer mediator;
cm = community mediator;
ac = academic commentator;
spo = ADR service providing organisation.

Back to text.

(12) In the sense that parties' rights to litigate are not prejudiced by participation in mediation. Back to text.

(13) Arranged through the Law Society of Scotland. Back to text.

(14) Mediation UK consists of a network of projects, organisations and individuals interested in mediation and other constructive forms of dispute resolution. Back to text.

(15) SACRO is a registered charity and has been involved in providing mediation and reparation services Back to text.

for victims and accused persons as pre-trial diversion schemes since 1987. (16) In Edinburgh and Fife, respectively. Back to text.