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| This study examines the development and implementation of community mediation schemes by three small-scale voluntary organisations in Scotland. It draws some conclusions about the setting up of these types of scheme. It examines the practice of one scheme during the summer of 1997 and considers a number of practice issues. It suggests future areas for research. The study used a primarily qualitative methodology based on observation of practice and interviews with service users, practitioners, managers and referral agents. |
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| Main Findings |
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- Community mediation schemes need to pay attention to the marketing of community mediation to funders and potential referral agents at the development stage. Providers should consider a wider range of potential referral sources, and the need to make the public aware of their services.
- There is debate to be had about whether key service agencies such as Housing should conduct their own in-house mediation schemes or whether community mediation is best conducted by independent agencies.
- Early referral may stop disputes from escalating but there is need for further debate about the criteria for referral, particularly about when criminal or civil proceedings are likely.
- Community mediation alone may not be enough for some kinds of neighbour disputes, for example, those involving insulation between dwellings and facilities for children
- Mediators need to make sure that the parties to a dispute are happy with the way they are treated. In particular, they should be allowed to tell their own stories and should, as far as possible, deal with the same mediators throughout the process.
- Mediation schemes need to look at how mediation relates to civil litigation and criminal proceedings. Consideration should be given to using enforcing agreements and to using mediation as a form of diversion or referral where an Anti-Social Behaviour Order is being considered by the Court.
- There may be a role for mediation in promoting access to justice through involvement in the development of community legal services.
- Because they are so innovative, future community mediation initiatives should build in a research element so that maximum learning can be drawn from practice at an early stage.
- Research priorities in this field are for studies into demand for mediation services; examination of the nature of the mediation and conflict resolution process; outcomes of mediation; and the feasibility of linkage between community mediation services and the proposed community legal service.
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| Background |
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| Interest developed in Scotland during the 1990s in community mediation as a mechanism for dealing with neighbourhood disputes. These disputes were seen to be taking up an undue amount of criminal justice resources, and it was thought that community mediation could be a less costly but more effective way of dealing with them. A number of groups were established to develop services and SACRO, as a national voluntary organisation, also planned to develop a service in Edinburgh. In 1994, four schemes were being developed, including urban aid projects in Dundee (Community Mediation Dundee) and Edinburgh (SACRO). By 1995, it was agreed that a study of their development and practice should be undertaken although, in the event, only three of the four schemes participated in the study, and by the time of fieldwork, only one of these schemes was fully operational. |
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| Aims and Methods |
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| The aims of the study were to describe the history, development and practice of the three schemes; examine the issues which arise through undertaking mediation in a community setting; and outline the key methodological, policy and research issues for future studies in the area. |
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| The study was conducted by analysing documents (including case records), observing practice and interviewing service users, mediators, paid staff, managers, management committee members and representatives of agencies who had made referrals or had been involved in developing the schemes. |
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| Development and Policy Issues |
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| There was considerable support for community mediation from those agencies which would make referrals and sponsor funding applications, but agencies found difficulty in releasing resources of their own to support these services. Schemes were heavily dependent on regeneration funding which imposed its own limits on spheres of operation. In no cases were feasibility studies conducted and there was a clear need to develop a consistent and sustained approach to liaison with referral agencies and to promoting community mediation in the public eye. |
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| There is considerable debate about whether community mediation should be located in the statutory or independent sector. Some local authority housing services are developing community mediation schemes but this has given rise to suggestions that they may not be impartial and that they cannot deal with cases which do not involve council tenants. |
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| Community mediation is sometimes promoted as a means of empowering communities. There is a tension between, on the one hand, the desire of schemes to contribute to regeneration by promoting collective action as an aim and, on the other hand, the requirement to deliver mediation services in collaboration with key service agencies. Schemes need to be clear about the priority they attach to each of these aims and how they translate into management structures and practice. |
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| It is necessary to examine how community mediation sits alongside government policy to promote civility in neighbourhoods and access to justice. Mediation may be used as a form of diversion or as an alternative measure when considering an Anti-Social Behaviour Order (ASBO). It may be able to play a part in the promotion of access to justice within the framework of community legal services, by providing non-adversarial dispute resolution services in appropriate cases. |
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| Practice Issues |
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| The study shows that there is need for further debate about criteria for referral, particularly where there are significant mental health difficulties and also in relation to whether community mediation can be conducted in the face of possible or actual criminal or civil proceedings in the case. There was consensus that early referral may well pre-empt escalation of disputes, and referrers may need to work out the best ways to identify nascent disputes. Certain problems such as insulation between dwellings and facilities for children may need to be dealt with by measures other than community mediation. |
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| Although face-to-face mediation is seen as the ideal model of mediation, in fact it is rarely encountered in practice. This is partly because parties do not want it but also because mediators can help parties to deal with conflicts unilaterally. In addition, there is a natural wastage of referrals. Community mediation schemes will therefore need to re-consider the way they make sense of their practice, re-focusing on aims and outcomes, such as conflict reduction, rather than emphasising particular approaches to the work, such as face-to-face mediation. |
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| Mediators appeared to be very conscious of the need for service users to be safe in the process of mediation. However, some did need to be more pro-active in selling the concept to potential participants in mediation. Some will need to develop greater confidence in challenging parties in dispute about their behaviour. There was a tendency among mediators to undervalue the service user's telling of their story and the need for continuity of personnel in the mediation team in working on cases. There were a number of cases in which it appeared that not all the parties to a dispute had been involved in the mediation process, leading to problems in reaching agreements and in ensuring compliance. |
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| Difficulties are being experienced by parties and schemes about the legal status and enforceability of agreements reached in mediation. This is associated with the question of whether mediation can proceed in the face of possible or actual litigation or criminal proceedings. Much work needs to be done on these questions and also to locate community mediation in the context of diversion and alternative dispute resolution (ADR). |
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| Schemes need to clarify their policies on confidentiality. Particularly they need to consider (1) the legal limitations upon confidentiality and privilege in Scots Law, (2) the need to balance accountability of practice in recording and confidentiality and (3) open access. |
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| Schemes should make approaches to minority ethnic communities to consult about how best to facilitate involvement of their members in community mediation processes, both as mediators and parties in dispute. |
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| The amount of training hours purchased by schemes from trainers is inevitably limited. We recommend that basic training should, amongst other things, emphasise the legal context of neighbour disputes, including relevant processes and types of complaint. There needs to be a negotiated programme of follow up training for experienced mediators. |
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| Research Agenda |
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| This study and others concerned with mediation have thrown up a number of important issues for the conduct of research in this field. |
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| We recommend support for involvement of researchers at the earliest possible stage of project planning, and making this part of the discipline of development for new practice initiatives. |
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| We recommend that schemes make use of data bases, such as that of Mediation UK, which lend themselves for comparative and meta-analytical studies. We recommend that schemes record relevant data on the ethnicity and gender of participants in mediation and on the involvement of staff, mediators and management committees. The selection of cases for sampling should be governed by the research design, subject to the willingness of the respondents to participate, rather than by the judgement of schemes about how suitable a person is to be included in a sample. We recommend that studies should attempt to gather observational data on practice, using a variety of techniques to achieve triangulation, balancing minimal intrusiveness and optimal verifiability. |
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| We recommend that future studies pay attention not only to direct service activities, but also to other relevant activities such as development, management, supervision and support, administration and training. |
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| We identify four areas as priorities for research in existing schemes and future implementation strategy: |
| Demand for mediation - We need further data on the incidence, intensity and characteristics of neighbourhood disputes. More work needs to be done on the feasibility and suitability of these types of dispute to be dealt with by community mediation. |
| Mediation process - Further work is needed in two areas: the expectations, motivations and participation of parties to disputes in mediation; and the interventions of mediators. |
| Mediation outcomes - It is important to examine the outcomes of mediation and to explore the possible range of beneficial results of mediation. |
| Implementation - We believe that the idea of developing community law services provides a useful opportunity to test the feasibility of introducing community mediation in a planned and integrated way within the strategy for promoting safe communities. There is a need to examine the appropriateness of locating mediation services in in-house local authority or independent schemes. |
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| About the Study |
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| This is the first study in Scotland to examine the implementation of the concept of community mediation by small-scale voluntary organisations. The research was conducted during the summer of 1997 by Robert Mackay and Amanda Brown at the University of Dundee Department of Social Work. It is based on data collected primarily by observation of practice, and interviews with service users, mediators, managers and referral agents. The study was funded by the Legal Studies Research Group of the Scottish Office. |
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| The aims of the study were to describe the history and development and practice of three schemes; examine the issues which arise through undertaking mediation in a community setting; and outline the key methodological, policy and research issues for future studies in the area. |
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| The study conducts a wide-ranging review of literature relating to community mediation. It identifies some important issues for the development of community mediation schemes and the conduct of practice. It also identifies key issues for developing a research agenda and proposes priorities for studies in the field. |
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| 'Community Mediation in Scotland - A Study of Implementation', the research report summarised in this Research Findings, is available priced £7. Cheques should be made payable to the Stationery Office and addressed to: |
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| Further copies of this Research Findings may be obtained from: |
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| This document and other Research Findings and Reports may be viewed on the internet at http://www.scotland.gov.uk/cru/ |