My Lords, I welcome the amendment put forward by the noble Baroness, Lady Finlay, and will make what have been described as technical points. While I think this is a very good base, there are some things that I think need looking at.
I trained as a commercial mediator some years ago, and practiced for a couple of years, before I was signed up by David Cameron to do a different job. The first point
I make is that there is a difference between commercial and family mediation. It is important to realise that. I notice that the amendment says
“where the authorities consider that the difference of opinion is unlikely to be resolved entirely informally”.
I suggest that it cannot be the authorities that decide; it has to be offered equally to both sides. That is why it will not be appropriate for the authorities to provide the mediation service. There are a couple of good, independent mediation services, including the Centre for Effective Dispute Resolution and the Alternative Dispute Resolution Services, but if it is to be a system which has the confidence of both sides, it must be independent of the authorities.
The next point I would like to make is this. There is a big difference between family and commercial mediation, and the difference is fundamental. Commercial mediation produces a legal, enforceable result; family mediation produces an agreement which has no legal force. One of the points which must be addressed if this is to be brought to fruition is what is to be the status of the mediation agreement. That is fundamental.
I was a commercial meditator and in East Anglia, where I was, we had a practice of commercial mediators going out also with family mediators to get an experience of the full area. One of the most distressing points about family mediation was the way in which families would bicker, eventually reach some sort of compromise, and, before you were through the door, decide they were not going through with it. If mediation is to work, it will have to have some sort of resolution at the end where the medical profession and the family can say, “This is settled”—not where one side can say, “Well, I don’t really like the outcome”. This could be the case, particularly in a complex medical situation, where you have a number of doctors involved and maybe two or three of them are part of the mediation but there is then someone further up the line who says, “No, I just don’t accept this”. There has to be a dispute resolution which has a legality about it.
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The next point I want to make is that the NHS, as we have heard in other debates on this Bill, is a terribly litigious place, and I am afraid that we need to take care that we are not opening up yet more cases for the Medical Defence Union and medical defence solicitors. I speak from very limited experience here, as I have a sister-in-law who is a retired medical negligence solicitor. As we all know, around the country there are companies of medical negligence solicitors. Their money is funded from the National Health Service through encouraging people to take legal action whenever possible. No general practitioner ever proceeds without his MDU cover, because it is just not safe to do so.
So we also need to look at the way in which the legal profession will get involved, and that, I am afraid—noble Lords will probably expect this from a Conservative—means that we have to look at the way in which the legal aid fund is able to be used. It cannot be an open fund; it will have to have some limitations on it. It is not for me to suggest what they are, but it is for me to suggest that they will be needed at some point.
The next point we have to consider is that when I was doing mediation it was much cooler, because commercial mediation is really about financial disputes between you and your builder. If you are doing this sort of mediation, you have to recognise that some people will go into it determined not to settle, and a mediator cannot force them to settle. There are not many such cases but, even in the area I worked in, in something like 15% of the cases you could tell within the first five minutes that they were there for an outing, not a settlement, often—this was the crucial thing—because emotional considerations had taken hold of the day. They were there because they did not like something or they wanted to get their own back, et cetera, and the mediation was never going to work.
So we need to look at the way in which people are referred to mediation, because it will not work if it is forced. If you say to a couple, “You’ve got to go to mediation”, they may well say behind your back, “Oh well, I suppose we’d better go through with it, but we don’t have to make it binding”—and they do not, of course, because the whole essence of mediation is agreement between two conflicting sides. We have to recognise that you cannot force people to mediation and that, just as the authorities can decide that it might be appropriate, it will not be appropriate unless both sides agree with it.
I say these things not to pour cold water on the amendment, because I think it is very worth while. This path could aid a lot of families, but my view of this clause is that it still needs quite a lot of work. I hope the Minister will be able to say, “We think this is probably a good way forward, but we need to look closely and further at it and discuss with the noble Baroness how we can make this system actually work”. A number of technical problems will have to be looked at, and overcome, if it is to be anything other than a clause in a Bill that never gets off the ground.