FOR the past ten years, courts have been trying to encourage mediation as an alternative to litigation. More recently the Government has taken the initiative as well and is now promoting its use. Not only is mediation cheaper, swifter and less contentious, but in cases where litigants are locked together in contracts, businesses or family relationships it makes life after the decision far less unpleasant.

This has also long been clear to the Solicitors Pro Bono Group, whose lawyers take on deserving cases without charge. Three years ago they began the LawWorks Mediation Scheme, a trial to see whether mediation was not a better way forward for those who would struggle to afford lawyers’ fees. The conclusion, after about 25 test cases, is a resounding “yes”.

John Hine and John Kendall, both retired City solicitors, set up and ran the trial. Often, Hine says, in cases involving small businesses, employment or tenants, mediation makes it possible for people to work and live together in better harmony and understanding than before the mediators stepped in.

For those unfamiliar with mediation, it is a flexible and confidential process in which a neutral mediator helps disputing parties to negotiate an agreement, with the parties in ultimate control of the decision to settle and on what terms. To qualify for a LawWorks mediation, the applicant must satisfy certain conditions. First, both parties to the dispute must accept mediation as binding. Secondly, the case must be one that does not involve family relationships or disputes with neighbours, for which specialist services are available. Thirdly, those asking for help must show, with full disclosure of their income and outgoings, that they can not afford the cost of going to mediation.

How were suitable cases found for the trial? “Some were referred to us by advice agencies, such as the Citizens Advice Bureau,” Hine says. “Some were found by lawyers working pro bono. And some came to us either off the street or through our website.”

Not all lawyers are enthusiastic about alternative dispute resolution, which some see as a threat to their incomes. Those acting pro bono have to give an undertaking that they will not spend any less time or energy on the case than they would on a paid-for mediation.

For a LawWorks mediation, the scheme provides the mediator, who will be a solicitor or barrister qualified by a recognised mediator training organisation. Where necessary, the scheme also provides a lawyer to help a party through the process, and occasionally provides lawyers for both sides. Usually the mediation takes place at the offices of one of the lawyers. Each case takes about a day and a half of preparation, including the paperwork and studying of the briefs. The agreement reached can be enforced by a court if its conditions are breached.

Until now, Hine and Kendall have administered the scheme in their own time. With the completion of the trial, they have appointed a part-time organiser and taken office space. For this, they are appealing for funds — especially foundations interested in the work. “We and all the lawyers involved are already giving up our time and our fees. Perhaps others could help with the costs,” Hine says.

The total costs will be about £50,000 a year. Eventually, LawWorks hopes to take on many more cases. The initial target is 30 cases a year, but it could cope with more. The number is low, but so, surprisingly, are the cases available. “The whole idea of mediation is not well known outside the main commercial centres,” Hine says. “It needs clients and lawyers who recognise this as a valid option. Of course, the Government is keen to encourage mediation as a way of cutting legal costs. And courts nowadays insist on proposing mediation to litigants as an alternative.”

Nevertheless, despite a national helpline — 0845 6030809 — few are opting for this route. Hine is surprised. Cases pitting siblings against each other, or tenants quarrelling with landlords, or those where aggrieved employees want justice but not at the cost of leaving a job must run into the thousands. Pro bono lawyers have also worked for charities, where a legal case might bring bankruptcy and destroy years of goodwill and future funding.

Confidentiality is clearly essential, and Hine is reluctant to give details of the cases already resolved. But he is sure, from the pilot scheme, that mediation does work and will be accepted as an essential plank of all legal advice, whether paid or unpaid.

• www.probonogroup.org.uk

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