I am sure that this question must vex mediators all over the world.

It is often down to the skill of the mediator to persuade and influence everyone in dispute to give mediation their best shot but the mediator needs an opportunity to do this!

This is fine if each person sees a mediator very early on, before seeing their solicitor.

But, what if a person sees a solicitor first? After all, this approach is still very deep rooted in our culture, which is particularly adversarial by nature.

And, what if the person’s solicitor does not try particularly hard to paint mediation in a positive light?

I think that we all know what I mean here but before every solicitor thinks I am getting at them, I know that there are many ethical and principled solicitors who have their client’s best interests at heart and many, who are also trained mediators, who have a good insight into mediation and what it involves.

However, there are also the other type of solicitors I am referring to. To be fair, it might simply be an ignorance about mediation, what is involved and the benefits or they may have had a bad experience or two with mediation or, more cynically, they are more keen to keep the work themselves. Sadly, I come across the last situation far too often.

Therefore, how does ‘the system’ protect clients and ensure that they are given the best chance of making it to mediation and do not have to overcome the hurdle of mediation being mis-sold or, not sold at all !, in some instances, by their solicitor?

In civil proceedings, there is a compulsory requirement for solicitors to inform clients about mediation but, as I have just pointed out, this relies on the very person, who has an interest in keeping the work, encouraging their client to seriously consider mediation, which could very well have the effect of removing most of the case work and costs from the solicitor’s hands.

The obligation to consider mediation becomes more onerous in both civil and family proceedings, if a person wishes to use the court system.

In Civil proceedings, the Judge has the power to make a ‘Ungley Order’ along the lines described by Lord Justice Dyson in the case of Halsey v Milton Keynes NHS Trust

‘The parties shall consider whether the case is capable of resolution by ADR.  If any party considers that the case is unsuited for resolution by ADR that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when considering the appropriate costs order to make.

‘The party considering the case unsuitable for ADR shall, not less than 28 days before commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case is unsuitable.’

My view is that this is all too little too late!

By the time of the trial or 28 days before trial, if the parties were not already entrenched in their conflict narratives and positions, this is likely to have changed once they have had the chance to get really stuck into some aggressive ‘positional bargaining’ (compared with ‘principled negotiations’), leaving them poles apart and stewing in an air of self- righteous indignation and self-justification.

They will have had an excellent opportunity  to show the least attractive side of their personality and rigid mindset, often leading solicitor to conclude that mediation would not be suitable in these circumstances (bearing in mind that in civil proceedings it solicitors, not mediators, who are left to assess for mediation suitability).

In Family proceedings, each person, must attend a mediation information and assessment meeting with a mediator, before issuing proceedings in all but exceptional proceedings.

In my view, at least this is an improvement on the obligation in civil proceedings. At least in Family proceedings, the obligation precedes the issue of court proceedings and requires a meeting with someone who is neutral and an expert in assessing whether the circumstances and people are suitable for mediation (ie a mediator).

However, mediation is still not compulsory, only the need to attend a MIAM, and nor should it be.

However, again, I think that this is too little too late.

What I often find is that people come to me to explore mediation having already instructed solicitors and begun the process of exchanging letters and sometimes even proposals, again based on a process of positional bargaining which only serves to polarise mindsets.

So, by the time, I see them, they are often more convinced than ever about the unreasonableness of the other person.

As a mediator, I need to see each person to a dispute, as early as possible so I can begin, among other things, to prime and prepare them to create and build a mindset and approach of reciprocity so that they can begin the process of exploring things they each want and might be able to give each other, in an attempt to find a mutually satisfactory solution. This is the nature of mediation.

If the intention is to give everyone involved in a dispute the best opportunity of resolving things for themselves, at the earliest possible opportunity, saving them time, many £1000’s of cost and further damage to an already damaged relationship, we need to think about how to devise a system that encourages everyone to see a mediator, at the earliest possible opportunity.

How can we do this? Ideas please……