Memorandum by the Centre for Effective
Dispute Resolution (CEDR) (GBI 08)
1. DECLARATION
OF INTEREST
1.1 CEDR (the Centre for Effective Dispute
Resolution) has for the past 14 years led the development of alternative
dispute resolution processes in the commercial and civil justice
fields. A not-for-profit organisation with charitable status,
CEDR works closely with the judiciary, government, public and
private sectors to cut the costs of conflict by exploring ways
in which adversarialism can be avoided through the application
of commercial common sense and best practice.
1.2 Much of our work is based around the
concept of mediation, the intervention of a trained neutral third
party to facilitate dispute resolution processes.
1.3 More recently CEDR has been instrumental
in developing innovative uses of the mediation process across
a wide spectrum of situations including clinical negligence disputes,
planning systems, and public-private finance initiatives. We believe
the mediation process and what lies behind the increasing use
of mediation in the civil justice system has much to offer the
debate over Government by Inquiry. More broadly, what we have
learned by encouraging "alternative dispute resolution"
and seeing numerous cases resolved quickly with better client
satisfaction, is that process management deserves attention as
an issue in itself, compared to its neglect in favour of automatically
adhering to traditional procedures for their own sake.
1.4 Responses to this inquiry will predominantly
fall under the "specialist interest" category focussing
on those questions to which we feel we can contribute the most.
2. SUMMARY OF
RECOMMENDATIONS
— Encourage research into the outcomes
or lack of outcomes, and into processes used, in the inquiry process—both
historic research and action research.
— Consider creating a specialist unit
or neutral standing committee constituted to consider questions
of process design and planning and who can build up a body of
expertise and independence to benefit future inquiries.
— Ensure that effective planning, process
design and relevant personnel appointments are recognised attributes
of effective inquiries, and are actively considered for each inquiry.
— Recognise the value of complementing
or in some cases replacing the traditional inquisitorial and/or
adversarial "model" of the inquiry process to allow
the deployment of focused consensual process design and imaginative
outcomes to be considered.
3. GENERAL
3.1 Recommendations made for changes to
the purpose of the inquiry should apply equally to statutory,
non-statutory and ad hoc inquiries as outlined in the Powers and
Legal Basis section of the Issues paper.
3.2 The challenge for the PASC is to ensure
that an effective system and process for an inquiry is established
prior to the necessity for such an inquiry. A common failure is
the triggering of an inquiry in the heat of a crisis, leaving
no time to consider what we regard as essential questions: "Who
should take the decisions (and what should those decisions be
on) as to: (a) calling an inquiry; (b) the form it should take;
(c) its terms of reference or objectives; and (d) the appointment
of chair and members".
3.3 The current knee-jerk reaction to the
calling of an inquiry too often leads to a failure to capture
the real complexity of what happened. It also loses the opportunity
to address a range of possible outcomes or objectives as well
as the opportunity to build "buy-in" to the practical
effects which may emerge from the evolving understanding which
is the main product currently generated by a formal intellectual
inquiry.
3.4 Intrinsically linked to this failure
is the apparent lack of real thought given to the question of
the best mix of skills and backgrounds of those responsible for
conducting the inquiry. Recognising more sophisticated objectives
and flexible models for the process, carries with it a need to
find personnel who can best assist in implementing these models
and achieving the objectives of a particular inquiry.
3.5 Again, the time necessary for proper
planning is often not feasible, given the Government's need to
be seen to respond to what may be deep public concern. Without
devoting the necessary time and design, however, none of the above
questions can be effectively dealt with and appropriate outcomes
realised. Therefore how to ensure careful planning is crucial
in any approach to effective reform of the inquiry system.
3.6 One option is a specialist unit or standing
committee to specialise in this area, a group which could build
up experience, conduct pilots, make recommendations on purposes
and process, as well as on personnel. Such an established and
neutral route would assist the independence of appointment and
process and avoid accusations that the inquiry process is merely
a way to divert attention and take the political heat off the
government of the day. We think that this is a design question
in its own right, so make no premature assessment of the constitutional
status or structure of such a committee or unit.
3.7 At the very least CEDR believes that
research should be encouraged into past inquiries with a view
to assessing the outcomes achieved, the other processes that were
required to create practical outcomes, and some broad cost-benefit
analysis. Some action research could also be encouraged (perhaps
in some simpler inquiry contexts first) of creative alternatives
to the traditional inquiry model, such as a consensus-building
approach across stakeholder groups, or a more inquisitorial and
investigatory versus "hearing" model.
4. MEMBERSHIP
4.1 As alluded to above, the appropriate
appointment of a Chair cannot be effectively made without due
consideration of the purpose of the inquiry proposed. Some judges
may be perfectly suited to chair an inquiry, others not so. The
nearest relative to inquiries is the litigation system. Increasingly
the courts and judges have been incorporating mediation as a matter
of course into civil procedures. Judges have also acted as mediators
in various high profile mediations with varying degrees of success.
This is because judges are highly trained in determining whether
or not facts are true or false according to the vagaries of the
legal system. They are not trained to consider other potentially
desired outcomes such as satisfying protagonists, encouraging
reconciliation of opposing views, creating social or sector consensus,
laying the foundation both for considerations of compensation
and blame and alternatives to such considerations, or engaging
in solution-finding through complex problem-solving. These are
all outcomes that may legitimately be desired through an inquiry.
4.2 The answer to the question "is
it appropriate for judges to chair inquiries?" is therefore
linked to the answers to the two subsequent questions—only
if they have the appropriate characteristics and qualities to
deliver the range of outcomes likely to be required by the inquiry
(and only when those outcomes have been properly identified).
4.3 In CEDR's experience, even if the underlying
principles of one dispute are the same as another, the outcomes
required and characters involved are invariably different. Every
inquiry will also no doubt reflect these differences and it is
our opinion therefore that each one needs to be assessed by an
expert or expert panel who have received specialist training to
deal with such issues. They would then be in a position to ascertain
accurately the need for lay participation, the appropriate processes
and other key matters.
5. PROCEDURES
5.1 As to the nature of inquiries—whether
they should be inquisitorial or adversarial—the most recent
example of the Hutton Inquiry turned out to be much more like
a litigation trial, both in the way it was conducted and also
the public perception of the outcome. Furthermore, although there
was a definite winner and a definite loser, it is doubtful whether
any party would now say that they regard the outcome as wholly
successful.
5.2 In either type of inquiry, responsibility
for what process to pursue passes very quickly from those directly
involved into third party hands. The mediation process not only
offers an alternative process as a consensual route to proper
outcomes, but also in appropriate cases can offer broader and
more flexible remedies than available from the courts. Not least,
the process offers control of decision-making and risk by parties,
and not simply the interpretation of facts by a third party. The
mediation process works equally well in class actions as in a
two party dispute, as shown recently by the settlement of several
hundred family actions against the Alder Hey Hospitals with several
remedies devised that would not have been available through a
court.
5.3 A significant challenge will be a clash
between the necessary transparency of an inquiry and the need
for confidentiality that makes mediation so successful. If however
transparency of appointment of a neutral individual or body is
enabled it may be more acceptable to the public to introduce elements
of the process which are in part confidential to the parties.
5.4 To put it at its simplest, however,
we believe that there may be certain occasions, or parts of certain
inquiries, where it may be useful to consider whether value can
be obtained by a process which seeks consensus first, before "judgment"
(consider the Bloody Sunday inquiry); or where there may be scope
for the inquiry to consider how best compensation would be allocated
were compensation seen as a likely outcome of the inquiry (consider
the Penrose Inquiry). The current system can lead to a sense of
gross unfairness of judgement, or lack of any meaningful practical
way of proceeding post-inquiry other than to start a process all
over again in the courts or via an Ombudsman.
5.5 One inquiry that did attempt to recognise
practical effects emerging from the evolving understanding of
intellectual inquiry was the Truth and Reconciliation Commission
of South Africa which dealt with the healing and investigation
that followed the Apartheid era. One which arguably has not done
so, and is likely to face a degree of hostility whatever the reported
outcome, is the Saville Inquiry into the events of "Bloody
Sunday".
5.6 Finally we think that the merits of
adversarial versus inquisitorial methods may vary for different
contexts. Flexibility should be retained, but guided by greater
intelligence on the pros and cons of the two core models (which
each in any case are open to significant variations of procedure).
It would be useful to do further conceptual work on these different
models, as well as comparative research and action research on
when they are most appropriate, and, develop guidance on best
practice for most situations.
6. PARLIAMENTARY
ACCOUNTABILITY AND
CAPTURING THE
VALUE OF
INQUIRY PROCESSES
6.1 If there were an established standing
committee or specialist unit appropriately constituted to consider
outcomes, processes and personnel, this could also become the
vehicle for publication of eventual reports and learning (in much
the same way as for example the National Audit Office publishes
its own reports). It would be in a position to build up a pool
of experience to handle subsequent questioning and ensure that
lessons were fed back into the inquiry process in a structured
way.
6.2 As to the value of inquiries, we believe
that under the traditional system, outcomes are less effective
and more random than they need be. Thus our emphasis that there
should be more research on this topic and certainly practical
experimentation with other models of process and objectives.
7. CEDR sees it as an essential part of
its mission to contribute to debate and learning on these issues,
and would be pleased to explore further ways to improve thinking
and practice, if the work of PASC calls for further commitment
of thinking on these topics. In particular, I would be pleased
to offer oral evidence before the Committee and/or to meet privately
with individual Committee members.
Dr Karl Mackie
Chief Executive CEDR
APPENDIX 1
ABOUT CEDR
CEDR, the Centre for Effective Dispute Resolution,
is an independent non-profit organisation supported by multinational
business and leading professional bodies and public sector organisations.
CEDR was launched in 1990 with the support of The Confederation
of British Industry. It is a registered charity.
Our mission is to encourage and develop mediation
and other cost-effective dispute resolution and prevention techniques
in commercial and public sector disputes and civil litigation.
We work in partnership with business, governments
and the judiciary, both in the UK and internationally, to develop
effective dispute resolution practice. We have been instrumental
in helping to bring mediation into the heart of business, public
sector and professional practice and into the judicial system
in England and Wales.
Through CEDR Solve, our dispute resolution and
prevention service, we enable business and public sector organisations
to cut the cost of conflict by providing a world-class mediation
service and a range of professional dispute resolution, training
and consultancy solutions using the foremost practitioners in
the field.
CEDR Solve is not only the UK's leading commercial
mediation provider but we also offer a range of other assisted
dispute resolution services, including expert determination, adjudication,
early neutral evaluation, and other forms of customised "independent
interventions".
We train business people and professionals to
manage and resolve disputes more effectively and train lawyers
how best to represent their clients in mediation.
Our consultancy service advises business and
the public sector on designing and developing dispute resolution
processes and systems.
In 2003, CEDR Solve arranged 631 mediation cases
of which 153 were under various schemes that we administer. We
continue to arrange and mediate an average of two cases each business
day. Not all mediation organisations publish their workload but
we believe that this is, by some significant margin, the largest
turnover of any mediation organisation in Europe. Mediations arranged
by CEDR Solve cover a very wide range of sectors and dispute type.
CEDR Solve is one of the few truly independent
dispute resolution providers with neither law firms, mediators
nor special interest groups as financial stakeholders. We operate
independently of particular professions and across diverse sectors.
Because of our neutrality, we can facilitate dialogue in difficult
and highly sensitive negotiations.
More information on CEDR and CEDR Solve can
be supplied on request. Our web site www.cedr.co.uk
contains a wealth of material.
APPENDIX 2
PLAYING CHICKEN IS NOT THE RIGHT WAY TO DEAL
WITH SERIOUS PUBLIC DEBATES (Text of an article as published in
The Times—31 March 2004)
Now that the dust has settled on the Hutton
Inquiry and the competing groups have vented their anger or appreciation
at the ref, it is time to take a cooler look at the nature of
inquiries, particularly as we now have a super league match to
follow with the Butler Inquiry.
One comment stands out more than any other in
the Hutton inquiry's work. It was in an e-mail from Tom Kelly,
the Downing Street spokesman: "This is now a game of playing
chicken with the Beeb. The only way they will shift is [if] they
see the screw tightening." This was not the only hint of
testosterone that characterised the context of the BBC-government
clash over the Kelly affair. Anyone listening to the Today
programme before David Kelly's death could also have detected
easily that rival street gangs were lining up. Indeed, after the
first shock wave came the demands for a replay—the terms
of reference were too narrowly interpreted by a forensic mind;
were overseen by a political placeman; missed the whole point
of the concerns about the war (itself an underpinning adversarial
event, constituting the main plot above the sub-plot).
But what has not been addressed until now is
that the way in which public inquiries are organised is fundamentally
flawed by their adversarial nature and lack of attempting seriously
to analyse how best they can achieve their objectives.
The Commons Select Committee on Public Administration
has now however launched its own investigation into "government
by inquiries". Tony Wright, its chairman, favours revisiting
the whole process after the inquiries into the deaths of Dr Kelly,
Victoria Climbie« and the Bristol baby heart patients.
Should there, MP's ask, be a review of how the
terms of reference are set and the chairman appointed, and greater
parliamentary involvement in setting them up? The MP's will draw
on a range of inquiries over 20 years, from Lord Scarman's into
the Brixton riots to Lord Saville of Newdigate's into Bloody Sunday.
Views are sought by Friday [2 April 2004].
There are four key areas to look at: Is it to
satisfy the protagonists or encourage a reconciliation between
the parties? Or is it to look at whether there should be compensation
and blame? Or to lance the boil of social distress? These are
all potentially appropriate; and in many complex inquiries, several
purposes may be implicit or desirable. Unfortunately, in the heat
of the crisis which leads to an inquiry, there is often a failure
to identify aims and how to meet them. They remain inchoate, bundled
together, under the umbrella of a simple-minded intellectual and
technocratic tradition that suggests that it is sufficient to
"investigate and report" or "judge" for matters
to move on.
This confusion, or vacuum, diminishes the chances
for dealing with serious and complex issues. It misses the chance
to reach a practical solution that all parties will support.
Linked to that blurring of objectives is an
even more frequent failing: a lack of sophistication on how to
develop bespoke ways to meet different kinds of purpose. The nearest
relative to inquiries—the litigation system—has recently
begun to integrate mediation into civil procedures. Why? Because
of the common despair at a "one-sided" verdict and because
mediation offers an alternative consensual route to justice that
is controlled by the parties and can offer broader and more flexible
remedies than the courts can give. A recent example was settlement
of several hundred family actions against the Alder Hey Hospital,
with remedies that covered non-financial as well as financial
outcomes and gave a different kind of hearing to families involved.
Secondly, there is the question of personnel.
The referee's origins, competencies, independence and character
are a frequent source of intellectual inquiry at the best football
matches. Such questions are again intimately linked with that
of how to devise the most effective method. A better understanding
of the inquiry's aims must lead to recognising what different
approaches can achieve. Judges bring forensic skills, not necessarily
social reform or consensus building expertise (or even inquisitorial
background in the common law system).
The classic response by governments to sudden
crises is a diversionary, knee-jerk appointment of a handy judge
or former civil servant. This gives a clue to the amateurish state
of the inquiry profession. One option is a standing committee
to specialise in this area, a group that could build up experience,
conduct pilot schemes, make recommendations on how an inquiry
should proceed and who should conduct it. Such an established
and neutral route would help to achieve the independence that
is so often the first casualty of the traditional approach.
Finally one should not neglect the money. Reform
proposals may appear at first blush to be a rather expensive notion.
This may, however, be shortsighted. How would one assess the cost
of the Hutton inquiry's result compared with a consensual outcome
between the Government, the BBC and the Kelly family? The direct
costs in legal fees of the parties to the inquiry were said to
be £2 million. Even more startling, the Bloody Sunday Inquiry,
begun in 2001, has already cost taxpayers £90 million and
is still not concluded. Will that inquiry achieve its purposes?
What if the Government had allocated even 17.5% of that budget
to a parallel mediation process between the Army, Government and
various communities to achieve an agreed reconciliation statement,
or allocation of compensation (in other words a sort of "value
added tax")?
We can't know whether it would have worked,
but has Hutton worked? What value has been created, and for whom?
And what should society be ready to pay to test more creative
ways of tackling major social crises, to move beyond playing chicken
as the model of public debate and headless chicken as its outcome?
Dr Karl Mackie
Chief Executive of the Centre for Effective Dispute
Resolution and
Visiting Professor of Law in the University of Westminster
| 
