Have you enjoyed the beginning of the football
season?
No, neither have I. Together with Mrs Bear and Junior
Bear, I have a season ticket to Carrow Road, which (for the uninitiated) is the
home of Norwich City FC. Over the
past couple of seasons, the club has achieved back to back promotions, the
chances of which happening (again for the uninitiated) one would have said were
significantly less likely than the chances of a random group of monkeys sitting
at a random set of typewriters bashing out not only the Complete Works of
Shakespeare, but also the economic policies of all 27 countries in the European
Union in one afternoon.
Actually, on reflection, it seems quite likely that the economic
policies of all 27 countries in the European Union were produced…….sorry, no, I
mustn’t go there. This blog
is strictly a-political.
Back to the football. The
trouble with back to back promotions, however unlikely, is that eventually you
achieve what you have been aspiring to and dreaming of for all those years in
the footballing wilderness: promotion to the promised land of the Premier
League. And the trouble with
the Premier Leagues is that, well, the other teams in it are, not to put too
fine a point on it, rather good. As a loyal Norwich supporter I would
insist that they’re not “better” than Norwich, goodness, no, it’s just that
they’re likely to score rather more goals than we are. But not “better”, no, of course
not. Never the less, the
likelihood that said other teams will score more goals than our heroes in the
yellow and green, and possibly significantly more goals, means that the Bear
family, who were wont to approach matches in a mood of happy optimism, now
approach them in a state of fearful apprehension.
I’m writing this after a 3-1
defeat away at Chelsea, a club who could probably buy the entire Norwich squad
with five minutes’ worth of the wages they pay to one of their stars. The report in the Sunday
newspaper (“Chelsea are on the up”) set the scene by explaining that interest
before the game was focussed on Chelsea’s new £23.5million pound signing, and
enthused that Chelsea began brightly, scoring after six minutes, and looked to be
heading for a “routine rout” before “losing their way”. Having lost their way, Chelsea then
conceded an equaliser, and appeared to be struggling until the referee’s
controversial award of a penalty “restored some order” and enabled Chelsea to
retake the lead, before Chelsea “added some lustre” to the score line with a
late goal.
I’ve checked the Premier Leagues
Rules, and they are pretty clear that every match shall involve two teams, so I
assume that Norwich must have been there, but from the report you wouldn’t have
known it. Chelsea are (1) a “big”
club; and (2) a London club, and on both accounts much more interesting and
worthy of comment than whoever it was that they were playing against.
Do I sound bitter and
twisted? Actually, I’m not
(well, not much; though it was never a penalty, and like all losing teams, “we
wuz robbed”). But Chelsea are much bigger than Norwich. £23.5 million would buy not just the
entire Norwich team but probably our ground as well. Chelsea might win a trophy this year, or at least challenge
for one; right now Norwich would settle for winning a game. Chelsea’s entire squad are
international stars; Norwich have Andrew Crofts, a yeoman of Kent who, on the
basis that one of his grandparents once took a wrong turn and crossed the
Severn Bridge, has played a handful of games for Wales. And being a London club, Chelsea will
be of far more interest to the “national” newspaper in question’s readership
than a team from somewhere that doesn’t even have a dual carriageway all the
way from London. It’s inevitable,
and natural, that the national newspapers will focus on the big team on their
doorstep.
Something similar is going on in
the world of mediation (and the wider litigation world) at the moment. In March of this year, the government
published a consultation paper on the future of dispute resolution in the
UK. It contained significant
proposals regarding mediation.
There have already been responses to the consultation paper. Lord Jackson, whose review predated the
paper, has responded. There has
been a response from the judiciary.
The Ministry of Justice is to respond by the end of October. There are to be responses from
the organisations who would see themselves as the big mediation providers
(you’ll know the names). All
of which is good. I’ve no
complaint about that. All of these people hold valuable views. I hold many of them in high
regard. Lord Justice Jackson
is an old boy of my college (or perhaps I am an old boy of his college?) so it
must follow that he is a fine fellow. I owe one of the big mediation providers, whose
response is awaited, my training and start in mediation, and I shall always be
grateful to them for that. But
what (or who) is missing?
It’s all a little like that
report on Chelsea against whoever they were. Half the story is missing. Two categories in particular have no voice in this
process. Firstly, what one might
call “front line” mediators; the mediators who are actually mediating a volume
of cases, say over a hundred a year.
The judiciary, by definition learned and wise, aren’t (with one or two
individual exceptions) mediators.
Nor are the Ministry of Justice. Nor, sadly, are the larger “mediation providers”
actually able to articulate the voice of the busiest mediators in the country. Although many (Stupid Bear included)
thought, when mediation started to take off in the UK during the previous
decade, that litigants would choose mediators from a particular provider, in
fact the market moved decisively the other way. The choice of mediator turned out to be so personal a choice
that litigants choose an individual mediator, based on their individual
qualities, and the value that they provide, rather than choosing provider. Don’t believe me? Visit the National Mediator Database League Table. The point here
is not the league table based on feedback, which is perhaps not to be taken too
seriously, but that the table provides the only independent record of who is
actually mediating regularly, and that not
one of the busiest mediators actually mediate through one of the big
“providers”. They are, or
have as a result of their success in the mediation market, become,
“independents”.
The other category that is
totally missing from the consultation process is the most important of all; the
users of the mediation process.
The solicitors, barristers and litigants whose cases are mediated. I’d be interested to hear from
solicitors and barristers who regularly use mediation how many of you were even
aware of the ongoing consultation, and how many feel that your voice is being
heard.
In saying this, I’m not seeking
to blame anyone. It’s in the
nature of almost all consultation that what one might call “the institutional voice” is heard
loudest; precisely because it is institutional, it is the easiest to ask, and it
is geared up to respond.
Independent mediators, and solicitors or barristers who use mediation,
don’t have a coherent voice. And
they are difficult to involve because, well, they’re too busy actually mediating
or being mediated to stop and give their thoughts about the process. If I were sent an email headed “consultation”
it probably wouldn’t get past the Spam Dragon that sits in my Inbox, and if it
did, I’d probably mark it for reading later on when I’m less busy, and then
delete it unread six months down the line. I don’t actually know how such a consultation process would
tap into the experience of the users at the sharp end of the system. I said in my first blog that I
have more questions than answers, and this is one of the areas where I have no
answer at all. But, just
because I don’t have an answer that doesn’t mean the question doesn’t
matter. If you’re a solicitor,
barrister, litigant or busy practising mediator, there’s a consultation process
going on out there about the future of mediation and litigation generally, and the
chances are the voices that are being heard least are yours. I hope you’ll find a way to make them
heard.
Stupid Bear.
