Pushing public sector mediation

Pushing public sector mediation - by Harry Spurr

At IPOS we are always keen to encourage the public sector to mediate more often, and to understand the reservations faced by those handling disputes engaging public bodies.

And so it was that on 11th May at Cornerstone Chambers I had the pleasure of chairing a fascinating discussion at which these important questions, and more, were explored before an in person and online audience made up, predominantly, of experienced representatives of local government and
other regulators.

The panel comprised Mark Shaw KC, mediator and barrister at IPOS and Blackstone Chambers; Emily Heard, head of the procurement team at Bevan Brittan; Lyndsey Smith, Principal Solicitor at Basildon Council; and Josef Cannon of Cornerstone, also a barrister and mediator, and our host for the evening.

The discussion was lively and wide-ranging and the audience engaged enthusiastically.

Among the themes to emerge were these:

- Public bodies do not mediate enough, which is a missed opportunity. This is partly a cultural
phenomenon, but also a reflection of real challenges, such as authority and statutory
frameworks.

- However those challenges can usually be overcome or worked around. The use of a
mediator who understands the sector helps.

- Setting realistic objectives and managing expectations will be important: full and final
settlement in the traditional sense will not always be possible. But saving public resources
and time is usually within reach, often by resolving issues subject to further formalities, or
narrowing the scope of disputes.

- The flexibility of mediation is a major attraction, and process design is something to explore
with an open mind. The usual one-day format might not be appropriate.

- A profound advantage of mediation is its capacity to repair and even improve relations. This
can be especially valuable because stakeholders in this sector are often ‘locked in’ to a
relationship indefinitely – eg in a planning dispute: a council, the landowner, neighbours
(residential and business) and other regulators, among others.

- For the public, mediation offers an opportunity to ‘be heard’ and thus avoid a sense of
exclusion, leading to grievances that all too often end up as judicial review claims or
Ombudsman complaints.

For my part I observed panellists and audience members showing strong support for mediation in
this sector, tempered, perhaps, by a sense of frustration that public resources are being wasted in
cases where mediation would have lots to offer. The answer, I guess, is ongoing efforts to educate
the market.

Lyndsey S was right to comment that a cultural shift is needed; this is surely achievable
over time, especially given the gradually increasing pressure from Government on all litigants to
mediate.

Meanwhile, all panellists, as well as IPOS public sector team member Lawrence Kershen KC from the
audience, indicated their willingness to talk informally to any public body or other party keen to
explore mediation in an ongoing conflict. Feel free to pick up the phone…

Huge thanks to all involved, and especially to our generous hosts at Cornerstone Chambers.