Can mediation work in personal injury?

"Yes mediation does work in personal injury."

Two things I really like about Lord Clarke of Stone-cum-Ebony, 1) his title and 2) the fact that he is a vigorous supporter of mediation generally and specifically in the field of personal injury (see my earlier post MR promotes personal injury mediation). He has been at it again at the Eclipse Proclaim Personal Injury Awards lecture on the 10th November 2009. You can see the full transcript of his speech Can Mediation work in Personal Injury here.

The message of why it works and what are the benefits of mediation has been repeated often enough and I won’t repeat it again here. What I found most interesting about the speech were Lord Woolf’s thoughts on how to increase mediation in personal injury litigation. He has never been a great believer in the stick approach – using costs sanctions. However he fires what he calls a warning shot across the bows by referring to Brownlee orders – arising out of the South Gauteng High Court decision in Brownlee v Brownlee.

Instead of sanctions Lord Clarke prefers education and co-operation:

So I do not think that the way forward is ever more intrusive and penal orders made by the courts, but co-operation between the parties and their lawyers … That co-operation should involve more mediation.

Education is required of judges, lawyers and the public. I am involved in educating the judges through my work with the National Mediation Helpline providers forum and with lawyers through in-house seminars (call for details). It is educating the public that is one of the most difficult challenges the mediation community faces. Instead of complaining that not enough people use mediation we need to get the message out there ourselves.

Let me have your views on how mediators can educate judges, lawyers and the general public. Post your opinion below.