Mediation: A Review of 2018

Dr Mike Talbot Articles

A UK Mediation tradition has started! After I started committing my end-of-year thoughts to writing over the last couple of years, I am often asked whether I will be doing it again this year. And, as you might be able to tell from the existence of this article, the answer is indeed yes!

What follows is just a small selection of higher-profile cases where mediation has been taken up, or might possibly be taken up in the future. Of course, if I tried to mention every media-worthy instance of mediation being proposed, taken up, or refused this year, I would be here until about April!  I haven’t included the many cases this year where mediation should have been tried but wasn’t – too many of those – and I think we already know that mediation should be used more, and earlier. Rather, these are just a few of the ones that I found interesting or encouraging, plus a brief look-forwards to the potential wider use of mediation that we might hope for next year.

Homelessness Reduction Act

One development that particularly caught our eye at UK Mediation was in April this year, when the Homelessness Reduction Act came into force. This is a piece of legislation that aims to put obligations on Local Housing Authorities to both prevent people from becoming homeless in the first place, and to provide better relief from the damaging effects of homelessness when people do actually find themselves without secure accommodation. The prevention of homelessness is a subject that I take an interest in, personally and professionally, and I do some work with Shelter and Crisis, a couple of the charities in the UK that take responsibility for preventing and alleviating homelessness.

Of particular interest to us in the new bill is the provision that Local Housing Authorities should provide mediation in situations where a person (especially a young person) is experiencing conflict of a level in their home or accommodation that could lead to them becoming homeless. This would relate in particular to a situation of prolonged or intense conflict with other family members, conflict between parents/carers of a level that the young person could not tolerate, or conflict between fellow service users/residents in a residential setting like a hostel or temporary placement. The idea is that mediation should be offered early on, perhaps through the support agencies that a young person might already be involved with, to try and prevent the young person having to leave their home or other accommodation, whether by choice or by being made to do so. Also, the idea would be that if the young person is already on the streets, mediation might be used to reconcile the relationship with their family and have the young person go back home, or at least for there to be some mending of fences so that there would be a supportive relationship and some practical provision by the family for the young person to fall back on.

We really welcome this legislation. While there are still some big gaps in the new provision, a woeful lack of funding in the UK for homelessness services, and some real and enduring problems with how private landlords operate in this country, this bill will help in several ways to address situations where unresolved conflict leads to someone having to sleep on the streets. 320,000 people are still considered homeless in this country, and almost 1 in 3 people either has been, or knows someone who has been homeless. Amongst these figures, a shocking 41% of young people attribute conflict with parents to be the reason they ran away from home.

I do feel, personally and professionally, that no-one should unintentionally be in that awful situation. And as we now close 2018, with most people about to spend some time feeding themselves up in their warm, dry houses and flats, with their loved ones around them, do please spare at least a thought.

Ryanair Pilots and Cabin Crew

Then, between June and August this year, mediation came into play with the Irish pilots and cabin crew who were in locked bitter dispute with Ryanair. Staff were going on strike in Belgium, Germany, Sweden and Ireland over annual leave, seniority and base transfers. And, in the Irish situation, with a potential stalemate looming and with significant disruptions being caused to Ryanair’s schedules, Ryanair proposed the appointment of a mediator. Their choice was Kieran Mulvey – the retired head of the Irish Workplace Relations Commission, and this was accepted by the pilots’ side. The final round of mediated talks concluded at 7.30 one morning after a 22-hour overnight marathon, and the resulting agreement was then put out to ballot. The industrial action was ceased shortly afterwards, in light of the mediated agreement.

Incidentally, while this case was in the news this year, some colleagues and I were following developments and wondering how things were progressing. Some debate began amongst us over whether Mr. Mullen was offering impartial and non-directive mediation or something else, given his extensive background and unquestionable expertise in industrial relations matters. Very few high-profile cases like these get as far as mediation, so we were glad to pounce on it as a rich source of debate!

While confidentiality was very well preserved, so all we really had was speculation, some wondered whether he was evaluating the two sides’ claims, arguments, and defences: not so much mediating but giving opinion on the basis of precedent cases, employment law, and his wider expertise. Others wondered whether he was conciliating: not actually letting the parties come up with their own solutions from scratch, but laying out some possible scenarios for resolution and getting the two sides to choose from a menu of possibilities. Again, the range of possible settlement options would be provided by Mr. Mullen and based on his expertise, but the parties themselves would ultimately choose which combination of possibilities, and in precisely what form, their dispute could come to be settled. Or was he mediating? Impartially setting up conditions for the two sides to have a fair, future-focused and interests-based negotiation, without him guiding, suggesting, advising or evaluating?

To put it simply, we didn’t know! I was glad to see that there were not any of the usual leaks or whispers, and Mr. Mullen even sanctioned people to keep the final draft agreement private until the members’ ballot has taken place. So we didn’t get to hear. But, in any case, my own take on our debate was that it didn’t really matter which nuance of Alternative Dispute Resolution Mr. Mullen was using. The facts were that both sides agreed to enlist the gentleman’s services (although there was some early-day points scoring about who proposed it, who had resisted it, etc.); the process was kept confidential, the arguments were settled out of court, apparently without a completely win-lose adversarial battle (although I got the impression the discussions were certainly less than cosy) and, ultimately, the outcome of negotiations was kept private until they could be written up into a binding form. So for me, even if there was some deviation from the pure-form mediation that we at UK Mediation prefer to practise, the process was still voluntary, confidential, future-focused and win-win, which ticked all the right boxes for me!

Dulwich Hamlet FC and Meadow Residential

A sporting dispute that caught my eye was in the news over the summer, worth a very brief mention here, which culminated in events in October 2018 when Tracey Crouch MP (Former Government Sports Minister) mediated in the dispute between Dulwich Hamlet Football Club and Meadow Residential Group. The football club was being denied access to its own ground over a trademark and planning dispute, which had many a copyright and/or planning lawyer sharpening their knives. Ms. Crouch got involved after firstly making a statement in the commons, saying she was going to put her shoulder behind moves to protect the David of the football club against the Goliath of the developers and planners. Arguably, she might have pulled rank and leaned on the planning bodies concerned to finally get the football club back into its home. But again, we could argue that the result is the most important thing, and whether or not it was mediation in its purest form does not matter too much, given the great result that ensued.

And again throughout this year, and presumably on into 2019, we have a couple of major disputes that don’t seem to want to go away. Given the gravity of these matters I just wonder (hope?) whether they might be open, in whole or part, to the use of mediation next year.

Houses of Parliament Abuse Scandals

The first of these is the entrenched culture of abuse of UK Parliamentary staff that was revealed by October’s report by Dame Laura Cox, the former High Court judge. Not a new problem, and something that I even mentioned briefly this time last year, yet remarkably, very little seems to have happened. Shockingly, Dame Cox’s report found 200 credible allegations of bullying and sexual harassment: this is in 2018, in the place where our laws are fundamentally enacted, where our elected members supposedly represent the will of the country’s voters, and where ethical standards and moral imperatives are debated daily. Wow.

But that investigation was into the mistreatment only of staff employed by the parliamentary authorities. There is currently taking place a parallel inquiry into the treatment of staff directly employed by MPs, and I imagine this might make for depressing reading as well. While there is clearly a place for litigious processes geared towards punishing and sanctioning the perpetrators of these vile acts, is there also a place for mediation to be used in order to get a dialogue started? More of a restorative process perhaps, in the train of the necessary investigations, to ensure that victims are heard, that perpetrators listen, and that impartial others help the perpetrators to start to comprehend the impact of their behaviours. Maybe with such a dialogue begun, we could expect in 2019 that the people concerned start to realise that being in a senior position does not entitle you either to behave outside of the law or to compromise other people’s dignity?

Gender Pay Gap Reporting

And finally, the Gender Pay Gap was a topic of significant contention that has been in the news this year, and will certainly still be around this time next year. Yes, we have employment law and equality legislation in this country as well as in many others. But what shocks me is the quite lackadaisical response that I hear each time another company is exposed for paying women far less than men for doing the same job. Again, the law needs to be used robustly in order to address overt and covert discrimination in these regards, but I also think there is a problem in how we perceive and react to this discrimination. There needs to be a better dialogue about the attitude that many industry sectors (especially the entertainment industry this year?) have towards this issue, and the fact that the unfair treatment has become so commonplace that it is actually expected.

And this nearly closes the brief account of my thoughts about a few interesting disputes that have caught my eye this year where mediation either was used, might become used, or should hopefully be used in the future. And I managed not to mention a little matter to do with the UK and its relation to its nearest trading partner!

Preventing homelessness, resolving industrial disputes, sorting out where football teams can play, or addressing serious discrimination. As UK Mediation enters its twentieth year, we continue to look for opportunities to make wider and more comprehensive use of mediation and to promote its acceptance and its normality as a way of addressing and preventing conflict. Let’s keep it up!

Thanks to all of our friends, collaborators and clients in 2018, and we look forward to working with you and many others next year.

Best wishes, health and happiness for 2019.