JMH Consulting

John Holland, of J & M Holland Consulting Ltd is qualified as an ADR Group Accredited Mediator based in Chorley, near Preston, Lancashire providing mediation services to the North West and beyond.

As this is very much the way courts in England and Wales will wish to see disputes settled in the future, you will find listed below is some information provided by the ADR Group about Mediation.

The History and Practice of Mediation

Mediation has been defined as:

"The intervention in a negotiation or conflict of an acceptable third party who has limited or no authoritative decision-making power but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in dispute."
Christopher W. Moore The Mediation Process Jossey-Bass 1996

Third parties have intervened in disputes since time immemorial, and much of this mediation derives from religious tradition.

In the Western Christian culture there is a strong tradition of mediation. For example, the use of churches as places of sanctuary is well known, but what is not always appreciated is that, whilst the criminal was protected by the sanctity of the church, the clergy often acted as mediators between the criminal and the authorities. As well as mediating in this way, Christian clergy in the Middle Ages were called upon to act as mediators in disputes between families and in diplomatic disputes.

In more recent times, the work of the Quakers in the field of international peace negotiations is well known. Other church members also find themselves taking on an active role in mediating settlements between disputing parties – two famous examples in different arenas being Terry Waite and Bishop Desmond Tutu.

Of course, mediation is not exclusive to the Christian tradition. Rabbis and rabbinical courts have always provided a means of resolving disputes between members of the Jewish faith, this often being connected with rabbinical interpretation of the Torah. Similarly, the Islamic culture has a strong tradition of mediation. Both mediation and conciliation are the preferred approaches of the Prophet, and the tradition is particularly apparent in the role of the quadis, specialised intermediaries who interpret and apply shari’a law, often "attempting to preserve social harmony by reaching an agreed upon solution to a dispute" (Hourani 1991). In the Chinese and other Asian cultures, both Confucian and Buddhist traditions encourage dispute resolution through compromise rather than coercion. In these cultures, litigation is seen as a last resort which involve considerable loss of face. In Japan "mediation is embedded in the business culture, where intermediaries are used as introducers, shokai-sha, and as mediators, chukai-sha, to smooth business relationships" (Moore, 1996: p 33)

In secular society, the mediating role of village elders, tribal councils and the like can be traced across all major continents. Indeed, it could be argued that local councils still fulfil an important role as mediators in local disputes.

However, it is not until the twentieth century that mediation came to be institutionalised in the secular arena and started to become recognised as a separate role. In the United States of America alternative dispute resolution (ADR) processes (alternative, that is, to litigation) were being formalised quite early in the century, with the U.S. Department of Labour (established in 1913) appointing a panel called the "commissioners of conciliation" to deal with labour/management disputes. It is interesting to note, however, that legislation concerning the conduct of industrial relations, in the form of the Conciliation Act, was introduced in the United Kingdom as early as 1896.

Having said that, it cannot be denied that the USA embraced ADR with great alacrity. The commissioners of conciliation became the United States Conciliation Service that was, in 1947, reconstituted as the Federal Mediation and Conciliation Service.

As Moore (1996) points out, mediation has proliferated in the public sector in the USA. Amongst other initiatives he cites Neighbourhood Justice Centres, the Community Relations Service and a number of specialised initiatives to promote the use of mediation in the resolution of ethnic and environmental disputes (for example, the Mohawks’ Akwesasne Peacemaking Program).

In the meantime, the American Arbitration Association (AAA) was set up in 1926 as a commercial service for the resolution of disputes in the private sector. As AAA grew (it currently administers some 60,000 arbitrations and mediations annually), so did the use of ADR and, in particular, mediation in the USA. Many American states have state-funded mediation programs, whilst the use of mediation has been extended to cover disputes in almost every conceivable arena, including family, environment and even the playground.

Similar growth has been experienced in many parts of the world, most notably in Australia, New Zealand and Canada.

In the United Kingdom, mediation as we currently know it could be said to have its roots in the formation of the Advisory, Conciliation and Arbitration Service (ACAS) which was set up in 1974. This body was set up specifically to deal with industrial disputes and it continues to do so to this day. However, the UK had no commercial mediation service available until 1989 when IDR Europe Limited, which now trades as ADR Group, was set up. This was followed in 1990 by the establishment of the Centre for Dispute Resolution (CEDR).

In a television broadcast in 1989 the then Lord Chancellor, Lord Mackay of Clashfern, stated that "mediation and other methods of resolving disputes earlier without going to court that produce satisfactory results for both sides are, I think, very much to be encouraged" (quoted in Acland 1990: p. 2). Despite, or maybe because of, this guarded enthusiasm the use of mediation in the private sector in the UK in the early years of the 1990s was relatively low. Stephen York points out that a survey of firms active in international trade reported in December 1994 showed that 65% preferred litigation, 20% preferred ADR (including mediation) and the remainder preferred arbitration (York 1996).

Meanwhile, community mediation was beginning to be explored as a viable means of resolving neighbour disputes with a number of programmes being set up throughout the country in the early 1990s, including the Newnham Conflict and Change Project, Bristol Mediation and Mediation UK. At the same time, the use of mediation in the Family Division of the UK Court system was being actively promoted.

In the civil arena, the signal for change was given in 1994 with the appointment by the Lord Chancellor of Lord Woolf to review the rules and procedures of the civil courts in England and Wales. Two of the stated aims of Lord Woolf were to improve access to justice and reduce the cost of litigation. Lord Woolf made his own views clear as early as 1995 when he stated in an interim report:

"Settlement too often occurs at too late a stage in the proceedings. In the High Court in 1993, of those cases set down, the vast majority settled with or without an order of the Court."
Lord Woolf, Access to Justice, 1995

With the publication of the Woolf Report in 1996, it became clear that mediation was about to come of age in England and Wales. With its overriding objective being to enable courts to deal with cases justly, the report made it clear that parties and their lawyers would be positively encouraged to settle their disputes without taking them to court.

The recommendations of the Woolf Report were wholeheartedly endorsed by the Government, and resulted in the new Civil Procedure Rules, which were enacted in April 1999.

For ADR Group, the latter half of the 1990s has been a period of steady growth. As we have trained more and more lawyers in the skills of mediation, and more and more cases have been referred to us for mediation, we have known for some time that mediation is destined to become an extremely significant dispute resolution tool in the legal world. The new Civil Procedure Rules have accelerated a trend that we anticipated in 1989. Our belief in the value of lawyers learning the skills of mediation is probably best summed up by these words from a speech given by Lord Alexander in March 1995

"Many of the aspects of a lawyer’s temperament, instincts and training make them well fitted to become solvers of disputes. For ADR calls for objectivity, balance, incisiveness and presentational skills.
There is an opportunity there to be grasped, but only if the profession is in the vanguard of change."

Sample of Mediation Activities

July - 2010, Mediator

(Masterly vs. Harrison) 3 hour time limited mediation.

January - 2010, Mediator

(RCI-FSL vs. Johnson[1], Colinton[2] and Nissan[3]).

October – 2009, Mediatior

(JAH vs. GI) Web dispute.

January – 2008, Mediator

(Lambert vs. Dryden) Telephone time limited case.

December – 2007, Mediator

(Francis vs. EBL plc) Telephone time limited case.

September – 2007, Mediator

Halls Bakery. Completed a Commercial Mediation review.

July – 2006, Mediator

Response Business Management Ltd. Pre Court Consultation for Training Company in West Yorkshire.

February – 2006, Joint Mediator

A construction industry claim held in Humberside.