Scottish Government

4 ANALYSIS OF COURT MEDIATION SERVICE DATA AND RESPONSES FROM THE SERVICE PROVIDERS

4.1 This chapter recounts and analyses the evidence of the delivery of the in-court mediation service as recorded by the Court Mediation Service ( CMS) and reported by the Directors, MCs and the twelve mediators who responded to an online questionnaire.

Service provider's database

4.2 CMS constructed a database using Microsoft Access to record data in relation to the cases referred for mediation and to provide analytical reports on the data. The researchers were provided with copies of the database periodically during the pilot. so that questionnaires could be issued to parties. Following the conclusion of the pilots the final databases were provided to researchers in Autumn 2008. These were uploaded to a secure internet-based store with password access for the researchers. The data on this database have been searched and analysed using the Access reporting functions, import to other statistical software ( SPSS) and by manual cross checking with files obtained from CMS and the Scottish Court Service.

Observations on database and file keeping

4.3 Although both pilots were designed to the same specification there was a separate Microsoft Access database for each pilot court. These had been designed and set up by CMS . The CMS directors, the MCs and the researchers had access to all of the databases. The case details were entered by the relevant MC. The database contained all standard documentation for the service, and allowed for easy access to the forms that were needed before, during and after the mediation. There was no evidence of a database training manual for the MCs to use.

4.4 There were working differences and difficulties with the databases that have affected search and analysis of the data by the research team. The fields for capturing and searching for case information differed between the two databases, e.g. the Aberdeen database had up to nine dispute "sectors" (the subject matter of the dispute e.g. property, contract, unpaid bills) while the Glasgow database had three. Database entries, once created, could not be deleted. One double entry had been flagged up on the database and in monthly activity reports to the Scottish Government. In Glasgow six cases (identified by court reference number) appear twice in the database, and others have incorrect details at the first level of searching, but the correct details are available on further searching. Researchers' queries about database differences and clarity of entries were brought to the attention of CMS at a meeting with the Scottish Government in November 2007. This led to some amendments to the Aberdeen database fields, but, apparently due to oversight, none were made to the Glasgow database.

4.5 A number of database fields were based on yes/no alternatives only. This seemed appropriate when recording if fees were either chargeable or not chargeable (although it did not reveal whether they were in fact charged and paid). There was an option to select whether the case had been referred to mediation by the court or by the parties. This was not completed consistently or accurately and was inadequate because paper files record other referral routes such as a legal adviser, in-court adviser or a combination of influences on referral.

4.6 The database contained analysis and report forms set up by the CMS managing director. Depending upon what data had been entered and how the reports had been set up these did not always work, or yield meaningful data for the researchers. The report for analysis of user feedback forms did not yield any usable data (apparently because data from forms had not been entered in the system), and the researchers had to review the service feedback forms manually.

4.7 The paper files were kept by the MCs in locked filing cabinets in premises rented by CMS. There were slight differences in administration between the two offices. The paper files in Aberdeen were filed by database number (which broadly reflected referral date), and the court case number and party names were recorded on the cover. In Glasgow they were filed by date of mediation and mediator names but had no clear note of the database number and the court case number. Because database numbers had been used by the research team to track issue and return of questionnaires, it was difficult to locate relevant Glasgow files, and led to review of a larger number of files by the researchers than anticipated.

4.8 The researchers have used the data as recorded in the database, and as cross-checked by DTZ with CMS. When that data had not captured relevant material available from paper files or other reports the latter had been used.

Mediation activity

4.9 Monthly mediation activity across the pilot courts is recorded in Appendix 5 (online report) tables A5.1 and A5.2. Activity was consistent across the period of the study, with a slight increase in Aberdeen after the rise in court limits in 2008. This brought into the study free of charge mediation in summary cause cases up to £5000 in value.

4.10 Table 4.1 shows the mediation activity across both pilot courts.

Table 4.1 Result of cases referred to mediation

*includes 1 not implemented and returned to court.
** the database included 9 other cases in which no result is recorded, assumed to be duplicated data entry.

4.11 The resolution rate of 77.5% overall compares closely with the rates experienced in the Edinburgh service (78% in 2006-20007) and broadly with the number of mediations there (68 in 2006-2007, but the number has been higher in previous years).

How parties heard about the court service

4.12 At the point of being referred to the service the MC asked how the parties heard about the service. The Glasgow database is incomplete on this point (most responses being uncategorised). From paper files it was noted that two users indicated that they heard about it from a solicitor, and 126 of 181 respondents had heard about the service from the court leaflet. From the Aberdeen records of 118 responses on this question sources were more broadly spread between the court leaflet (25), a solicitor (12), other sources (46) (including one from the newspapers) and the Citizens Advice Bureau (35) who employ the ICA in Aberdeen. However paper files indicate a higher level of ICA involvement (with 71 user attributions).

Parties represented in mediation

4.13 A party being represented during the mediation was exceptional in Aberdeen. The Aberdeen database records only one mediation with a party who was represented in the mediation itself in a claim value of £1000 where a mediated outcome was reached. The Glasgow database records 16 out of 76 mediations (12 small claim and 4 summary cause) in which parties were represented. These had an average claim value of £537, all reached a mediated result and in the four summary cause mediations fees were chargeable.

"Sector" (type of dispute) analysis from databases

4.14 The databases recorded the "sector" from which the dispute arose (Table 4.2). Different sector options existed in the Aberdeen and Glasgow databases. In Glasgow there was heavy reliance on the "other" category.

Table 4.2 Sector in which claim arose

* the database totals for "other" cases included 12 additional cases not included here, assumed to be duplicated data entry

Mediators

4.15 The following paragraphs set out information about the mediators as disclosed in the database, case files, mediator reports and responses to the mediator questionnaire.

4.16 The CMS Glasgow database showed 34 potential mediators (including the MC and the two CMS Directors), but the Glasgow database list contained names of mediators who had not conducted any in-court mediations nor had they intended to do. This emerged when mediator questionnaires were sent out. In Aberdeen there were 11 mediators on the database including the MC and the two CMS directors. From cross checking database entries with files, mediator reports of mediations conducted, and responses to mediator questionnaires it was concluded that 16 mediators actually conducted court mediations in Glasgow and 10 conducted court mediations in Aberdeen. These numbers include the MC in each court.

4.17 CMS service standards provided for a reflective report to be prepared jointly by the co-mediators after the mediation process was complete in this case. There were 35 report forms filed in Aberdeen (61% of cases), capturing some reflections of all 10 mediators who were actively involved in the Aberdeen pilot mediations. In Glasgow 16 mediator report forms were recovered (20% of all cases, but others may have been completed but not filed together). These contained reflections of 13 different mediators who had conducted mediations in the Glasgow pilot.

4.18 The online questionnaire (set out in Appendix 2 (online report), Figure A2.3) was issued to mediators some months after the pilots had ended. These provided information about the service more as a whole, adding balance to the reflections made immediately after each mediation, and complementing what was contained on the database and case files. Twelve mediator responses were returned, representing 46% of those mediators who had carried out in-court mediations.

Mediator experience and training

4.19 The experience and qualifications of mediators was recorded on the database. Mediators included those with a qualification in:-

• law
• architecture
• engineering
• surveying
• accountancy
• medicine
• human resources

4.20 The mediators were recorded to have produced evidence of prior training in mediation. The nature of this evidence (e.g. certificates, portfolios of training records) was logged on the database for some mediators. Copies of the evidence were not kept routinely. In Glasgow the mediators were located across the centre and south of Scotland and 5 were active in the Edinburgh Mediation Service at the same time as the Glasgow pilot. Three of the 16 active mediators were or had been lawyers or had legal education. In Aberdeen 8 out of the 10 active mediators were lawyers and all but one were located in Aberdeen city or county. They did not have experience of mediating for the Edinburgh service.

4.21 Seven of the twelve mediators who responded to the questionnaire were previously associated with Catalyst Mediation and five were on their private panel. The other mediation organisations with whom the mediators reported association in questionnaires were Core Mediation, The ADR Group (both being commercial providers of mediation and mediator training) and SACRO (a not for profit organisation which provides mediation and mediator training for community disputes and victim: offender mediation schemes). Of the twelve respondents seven mediators had completed an application form to become a court mediator, three had supplied CVs, five reported supplying a portfolio of mediation experience, and three had given evidence of insurance. Those already on the Catalyst panel had previously supplied a portfolio for inclusion on that panel. Most mediators responding to the questionnaire had between 6 and 10 hours of mediation practice outside the in-court pilots in the preceding 12 months (year to March 2009). Two of the mediators reported no experience in those twelve months, and one reported more than 10 hours of mediation outside the in-court pilots in that year.

4.22 No mediators responding found the training sessions, guidance from the MC, acting as a co-mediator and post-mediation reflection be ineffective. Six of the twelve respondents had not received individual mentoring and seven reported not receiving a mediator handbook. The most effective supports for mediators were monthly training sessions (8 respondents), guidance from the coordinator (9 respondents) and ten respondents found acting as a co-mediator and post-mediation discussion to be effective or highly effective The responses indicate a good understanding by mediators of the role of the MC. One mediator felt strongly that the effectiveness of the MC was pivotal to the success of an in-court service.

Mediator involvement in cases and training

4.23 The MCs sought mediators for cases based on (a) experience, (b) fit and (c) availability. In Aberdeen it was common to find one lawyer mediator and one non-lawyer working together. Communication with mediators was by email between the MC and the panel members. Both MCs reported that it became clear that some mediator panellists were more reliably available than others for mediations and training events. MCs and mediators reported drop off in attendance at training events during the pilot, but all mediators were able to attend some of the training events. Training is assumed rather than evidenced in the database (which was incomplete) or files. Records of training attendance were kept on paper in Aberdeen, but were not evident in Glasgow records and were not kept routinely on the database.

4.24 Hours spent by individual mediators on cases had not been recorded consistently in the databases. Nor was actual time spent by the MC in setting up mediations. The research team in 2007 asked for more detailed time recording to assist with cost analysis, but apparently by oversight this was not done. Mediator questionnaires provided some additional information as to mediator time involved in the pilot. Most mediator respondents had conducted mediations lasting between one and four hours, and averaging two hours. Total court mediation experience of listed mediators ranged between none and 80 hours with the average being 30 hours over the pilot period.

4.25 Preparation, writing up and reflecting time added an hour over and above each mediation session. From questionnaire responses preparation involved reading the papers, discussions with the MC and with the co-mediator. Work post-mediation involved reflective discussion with the co-mediator, writing the mediator report and discussions with the MC. Travelling time was not recorded.

4.26 Nine mediators had carried out at least one court mediation without a co-mediator. In many mediations no adviser had been present. If advisers were present the positive impact was felt to depend upon their understanding of the mediation process.

Mediation report forms

4.27 All reports were reflective and contained insightful comments which had been used to inform training sessions. They were completed by the co-mediators. The filed reports in Glasgow were in general more detailed and informative than the Aberdeen reports, probably due to mediators' there having experience of completing such forms for the Edinburgh service. Their comments are summarised below. The comments match closely with factors that parties agreed to have been influential in the mediation (discussed in Chapter 5) and to mediator questionnaire responses. As well as recording the case and agreement details, the forms asked the mediators to identify the following factors to enable the mediator to reflect on the process used in that particular case.

Key turning points

4.28 Positive turning points included:

• parties listening to each other and acknowledging the other's point of view in principle;
• apology by one or both parties;
• parties coming to the mediation able to make concessions;
• private meetings with the mediator;
• exploring options in greater depth with the parties so that scope for concessions could be identified;
• party revealing a matter outside the proceedings that could be used in the negotiation (such as another invoice or a related third party claim);
• comparing options in the mediation to future options in the litigation;
• reflecting back to parties on rigid positions taken by them;
• party realising complexities of proof or future court procedures;
• taking a break for refreshment.

4.29 Negative turning points included:-

• when one party insisted on making offers that were derisory by objective standards;
• where one or both parties were unable or unwilling to make concessions;
• where one party became unduly upset and could not proceed with discussion;
• where one party winked at the mediator provoking an argument with the other party and putting perceived mediator independence at risk.

Things the mediator did well

4.30 Things the mediators felt they did well included: -

• facilitating a frank exchange of views;
• getting past parties' fixed positions and exploring underlying feelings;
• remaining patient and modelling co-operative behaviour;
• noting the bare bones of an agreement on a flip chart;
• maintaining momentum in negotiations;
• persevering with exploring underlying feelings.

Learning points

4.31 Mediators often noted as learning points the things that had worked well, but also reflected on:-

• whether to use differing combinations of face to face and shuttle mediation in future cases;
• to be aware that the parties might used the fixed time period of the mediation as a bargaining tool;
• to identify earlier any obstacles to mediation and send parties away to explore those;
• not "putting contentious issue on the back burner for too long";
• although parties were willing to talk together, using private meetings to identify and encourage a party's solution;
• "very important to ensure parties understand what are agreeing to";
• "interesting to explore mediator's role in helping the parties to explain to each other what they had already explained to the mediator in private meeting;"
• being flexible with process to accommodate parties' needs, not mediator preferences.

Areas of most difficulty in the mediation

4.32 Mediators noted these to be:-

• hostility of parties;
• cynicism/mistrust of a party;
• unreasonable stance of a politically motivated representative;
• dealing with aggressive or emotional behaviours;
• "2 male mediators, a female party who is crying and no paper tissues in the room";
• intransigence or small movement by parties when more was needed;
• party resisting negotiation until mediation time nearly up;
• English language difficulties;
• cultural differences between parties;
• dealing with different levels of understanding between parties;
• a party's willingness to proceed in face of accepted risks of the litigation.

The role of parties' professional advisers (if present)

4.33 Advisers (some professional and some lay representatives) had been present in a number of the Glasgow cases on which reports had been completed, either with a party or in place of party. No Aberdeen reports recorded the presence of a professional adviser (the database records only one such case). The majority of mediator responses to this question in the reflective reports indicate a positive impact of professional and lay advisers, with advisers being willing to reality test and help to calm the party. One mediation report notes "Party A had been accompanied by a legal adviser" on the first day of mediation, "however Party B felt uneasy because they did not have similar assistance at the joint meeting. Following discussion/negotiation, Party B agreed to Party A's legal representative attending the joint meeting as an observer." Another mediation report notes in relation to a case where the solicitor attended on behalf of a commercial party "the solicitor was impressed with the process and delighted to have resolution so quickly".

4.34 In responses from service providers it was noted that the adviser's influence might not be positive if the adviser was sceptical or lacked knowledge about mediation, or had a personal or political interest in the case. These factors could be disruptive and inhibit scope for the parties to settle. When advisers in Glasgow attended the mediation without the client or on behalf of a commercial client this sometimes caused mediator concerns about their authority to settle on behalf of the client, particularly if the other party was unwilling to be realistic about settlement.

Other comments

4.35 Mediators recorded their pleasure from situations in which parties showed positive reactions to the process e.g. through shaking hands, leaving the mediation together, or beginning to converse naturally or thanking the mediator. In one case in Aberdeen where an observer had been present (a visiting mediator and academic from overseas) it was noted that this had a positive effect on the mediation but with hindsight the role of the observer should have been made clearer to all before the mediation began. In another Aberdeen case the mediator noted "glad it settled; would not be surprised if one party complained." Dissatisfaction was expressed in party feedback with the communication style of the mediator, and this was dealt with in mediator training. Only one party made a formal complaint (in Glasgow) and this was dealt with to the party's satisfaction using the CMS complaints procedure, handled by the directors of CMS. The party had been unhappy about the extended duration of the mediation, the other party's failure to attend personally but to send a family member instead, and the interruption of the mediation by telephone calls between the family member and the absent party. Some reports contained positive comments about the co-mediation process, particularly if the same mediators had co-mediated before; conversely one form recorded balance of co-mediator involvement as an area of difficulty.

4.36 In some report forms, lawyer mediators indicate that they had to resist giving "legal advice" in the mediation. In the mediation observed by a member of the research team (described in Appendix 3 (online report)), the legally qualified mediator did give indicators of legal rules and options in litigation which parties found helpful in making an informed decision about an offer made in mediation. This might be described as "reality testing" rather than "legal advice". Reality testing would strictly involve asking the parties what they thought would be achieved in court if the case progressed. The mediators would have life knowledge and experience to help with the discussion but the line between reality testing and advice can be blurred. Some mediators responding to the researchers' questionnaire indicated that more reality testing by mediators might be appropriate. One mediator report noted that a procedural question about the litigation came up during the mediation when no lawyer mediator was present. This had been resolved easily by a phone call to the clerk of court.

Party Feedback forms to CMS after mediations conducted

4.37 In Aberdeen 36 completed feedback forms were found on file and in Glasgow there were 32. Assuming that two feedback forms were issued per case (one to each of the two parties would have meant a total of 272 forms were issued) this represents a return of 31% in Aberdeen and 20% in Glasgow. It is not evident from the forms whether they had been completed by Pursuer or Defender. The responses had not been entered on the database. The contents had in most cases been communicated to mediators and used to inform training and case selection. However, due to the low rates of return many mediators did not receive party feedback and relied on self-reflection.

4.38 The party feedback forms were reviewed manually and provide responses very similar to those obtained through the researchers' questionnaire for respondents. The parties who completed the feedback forms generally agreed or strongly agreed that mediation was quick, gave a chance to explain and express views about the case, and greater control of the result. They would not have preferred their "day in court" or a judge to decide the matter. Many indicated that they would choose or recommend mediation in the future, but on the statement "the mediation service provides a better option to settle disputes than going to court" a number were not sure or said it would depend upon the situation or the nature of the case. Most said they were willing to pay a similar fee for mediation as that payable to the court for the litigation. In comments some parties expressed their gratitude for the mediator's patience in dealing with the matter. One indicated some frustration with shuttle mediation, feeling that the parties should have been left together for longer to talk about the dispute.

Telephone mediations

4.39 Four of the twelve mediator respondents had carried out telephone mediations. Technical difficulties had been experienced by three out of four of the respondents who used telephone mediation, but all difficulties had been overcome. None thought it as effective as face to face mediation. All felt that mediation by telephone was better than not providing mediation. There was no adverse comment on telephone mediations in the party feedback forms.

Payment to mediators

4.40 No mediator respondents had received payment for court mediation undertaken. All twelve respondents had been willing to provide a service in the pilot schemes in order to obtain further mediation experience and to help promote awareness of mediation amongst parties and in the courts. Some reported still doing so in the Edinburgh scheme. However mediators' responses indicate that volunteer mediation is not sustainable longer term. Only four would be willing to continue with court mediation unpaid. Eight were willing to offer mediation on a state funded basis and ten on a basis of some payment below the full commercial rates chargeable for fees and expenses. Mediators were concerned that charging for mediation in low value cases would put parties off, and deprive them of the opportunity to try to settle in mediation. However there were mediator suggestions that in ordinary cases parties could pay on a full commercial charging basis.

Final comments on points emerging from CMS Data and service provider responses

4.41 The gaps and overlaps in recording data on the Access database across the two pilot courts made analysis more difficult than it could have been. Database design, data collection and training for use are important aspects of any service that is to be evaluated. The database had capacity to be of greater assistance in the research if there had been more detailed training and consistency in design and usage over the two pilot areas. Comprehensive integrated systems have been a challenge for the Scottish Court Service too.

4.42 The database issues have not undermined the messages that can be drawn from the evaluation. The data from database, paper files and interviews come together to disclose similar messages. There is a pattern of successful mediations over the period of the pilots. The service operated largely as planned relying on knowledge and experience on the part of the managers, coordinators and mediators. Divergences were: - use of (experienced) single mediators in some cases where circumstances prevented co-mediation in person; telephone mediations; and provision of guidance/advice from some mediators as to what parties might expect to happen to the case (procedure and cost) in court. There is a narrow line between reality testing with parties, and providing advice or a steer in a particular direction, the latter being contrary to the CMS Code of Practice (set out in Appendix 1 (online report) Form A1.1). However earlier studies of in-court mediation in other countries indicate that parties may crave more guidance from the mediator than theory assumes.

4.43 CMS and the mediators were very reflective in their approach to the service and to the mediation of individual cases. The mediators were experienced people with training in mediation. They delivered the service unpaid and with no reimbursement of training and insurance costs. For most the in-court work gave them experience in mediation and their activity in other types of mediation had been on average 6 hours in the year to March 2009. Questionnaire responses indicate that unpaid court mediation using the mediators who responded would not be sustainable in the longer term.

4.44 Using co-mediation allowed for a reflective discussion which mediators valued and in the absence of co-mediation the benefit of reflecting together on the individual case would be lost. For the purpose of evaluation the mediators' reports give considerable insight into the range of techniques used in the mediations, and impact of these techniques is borne out in the party responses set out in the next chapter.

4.45 Telephone mediation was introduced to allow parties to be involved in mediations when they could not attend in person. Although more difficult for the mediator than mediation in person, the process was of assistance in allowing more parties access to mediation and was felt by parties to be an effective use of time.