consists of using a neutral third party (mediator) to
help the parties to a legal dispute to reach a common
position. Mediation can either be ‘evaluative’ in the
sense that the mediator evaluates the strength of a case
or ‘facilitative’ in that the mediator concentrates on
helping the parties to reach agreement. The advantages
of mediation compared to litigation include reduced
costs and a reduction in conflict, making it particularly
suitable for the following kinds of disputes:
■divorce, separation and other family problems;
■neighbours, e.g. about noise, boundaries;
■work, e.g. discrimination;
■education, e.g. exclusions from school.
If mediation is successful, the parties may record their
agreement in the form of a binding contract, enforceable
in the courts.
Conciliation
Conciliation is very similar to mediation, in that a third
party helps the parties to reach a resolution. However,
in conciliation the third party plays a more active role in
bringing the parties together and suggesting solutions.
In some cases the initiative for a settlement comes not
from the parties themselves, but from an outside agency;
for example, the Advisory, Conciliation and Arbitra-
tion Service (ACAS) tries to resolve both collective and
individual disputes between employers and employees
by means of conciliation. ACAS receives a copy of all
employment tribunal applications. A conciliation officer
will then offer his services to the parties to help them
reach a settlement. Many claims are settled at this stage
with the parties avoiding the ordeal of a tribunal
hearing.
‘Conciliation’ is now regarded as a form of mediation.
Med-arb
This is a combination of mediation and arbitration.
An independent person will first try mediation but, if
it fails, the parties agree to refer the dispute to arbitra-
tion. The same person may act as both mediator and
arbitrator.
Neutral fact finding
This is a process which is used in cases involving com-
plex technical or factual issues. A neutral third party,
who is usually an expert in the field, will review the facts
in dispute and assess the merits of the case. The parties
may use the outcome as a basis for further negotiations
or to reach a settlement.Ombudsmen
The Swedish term ‘ombudsman’ describes an official
or commissioner who acts as an independent referee
between a citizen and his government and its adminis-
tration. The first ombudsman to be appointed in the UK
was the Parliamentary Commissioner for Administration
(PCA) in 1967. The job of the PCA is to investigate com-
plaints of maladministration by government departments
and various other public bodies, such as the Charity
Commission and the English Tourist Board. Maladmin-
istration means poor or failed administration and can
include unreasonable delay, bias or unfairness, failure to
follow proper procedures, mistakes in handling claims
and discourtesy. The PCA will not normally deal with
matters which could be resolved through a court or
tribunal. Complaints can only be brought by someone
with a specific interest in the matter, i.e. it affects him or
the organisation to which he belongs, and should not
relate to events more than 12 months old. The PCA can
investigate complaints received directly from the public.
The powers of the PCA are confined to conducting
an investigation into a complaint and, if the complaint
is justified, recommending a remedy. The PCA has no
power to order a specific remedy and there is no right of
appeal from the decisions of the PCA. The ombudsman
method of dealing with complaints has found favour in
many areas of official and commercial activity. Examples
of ombudsmen are set out in Fig 3.5.Regulators
When public utilities were privatised in the 1980s and
1990s, the government established regulators to oversee
the industries concerned. The main regulators are
OFGEM (gas and electricity companies), OFCOM
(telecommunications companies) and OFWAT (water
companies). The regulators will not normally deal with
complaints directly but they will investigate whether the
company has dealt with a complaint properly.Part 1Introduction to law