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CEDR
70 Fleet Street
London
ecaY 1EU
CEDR’s Dispute Resolution Service
Post Office Mediation
6 March 2015
Dear Mrs MacLeod
Post Office Complaint Review and Mediation Scheme
I am writing to provide initial feedback and recommendations regarding the mediation element of
the Post Office Mediation Complaint Review Scheme. This includes some feedback on how our
experience with this scheme compares with the wider commercial and employment related
mediation that CEDR conducts to provide some context.
As you know, since July 2014, CEDR has been referred 31 cases for mediation under the scheme. So
far 12 mediations have been taken up by parties, using six different mediators, and 2 are currently
being scheduled for mediation this month. With the other cases CEDR is awaiting further instruction
to proceed to mediation (for a number of reasons that are not within CEDR’s control).
Obviously this is a very small sample of cases to go on so one can only speculate on how the
outcomes will measure up once a larger number of cases have been undertaken. The current
settlement rate of approximately 45% is somewhat lower than the average settlement rate that we
see across all the mediations that CEDR conducts (although with a couple of cases still outstanding
this might increase slightly). In an average year the settlement rate tends to range between 65%
and 75% with a further 10% to 15% of cases resulting in some progression i.e. where the parties have
not reached a resolution but progress has been made in crystallising the position of the respective
parties.
Process Observations
There are a number of process observations and recommendations I would like to share which might
be helpful:
Subpostmasters’ expectations
On a number of the mediations that have taken place so far the subpostmasterhas not fully
comprehended the nature of mediation as a process. They have attended with the expectation that
they are going into a compensation process rather than a facilitated dialogue with the Post Office
in which claims made by either party do require some prior notification and explanation. It would
appear that some applicants and/or their representatives consider the approval for mediation does
in some way indicate an acceptance of liability by the Post Office, which is not the case. It has
been noted that, where a contractual relationship is still in effect, and where both parties would
like it to continue, the mediation process has been more effective.
Clarity of Issues
Mediator reports have indicated that on at least two occasions the subpostmager and/or their
representatives raised claims that had not been disclosed before the mediation. Having spoken to
all of the mediators used so far there is a consensus that perhaps some of the cases referred to
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mediation under the Scheme would not have made it to that stage within a litigation process given
the uncertainty over the issues. It is, of course, understood that this Scheme has been set up to
address specific circumstances.
In more ‘routine’ mediation work we see the parties have established the scope of their differences
well before the mediation day is fixed and both parties know exactly what they are in dispute
about. In our experience new or previously unarticulated claims aired at the mediation for the first
time invariably lead to an unsuccessful mediation or at best a much more difficult process.
Representation
There are some indications that legal representation provides better support. On a number of
mediations it would appear that the professionals engaged to represent thesubpostmaster who are
not themselves legally qualified have not fully understood the mediation process and were not able
to argue legal principles well.
Recommendations
Below are recommendations to consider to address the above points. Again, I would stress that
our views are currently based on a small sample so cannot be an indication of definite trends.
But potentially helpful measures you might consider include:
1. More information provided to the subpostmaster prior to the mediation day in order assist
them with understanding the nature of the mediation stage. CEDR can draft a one page
sheet of key facts that can be added the information already provided if that is considered
helpful.
2. Applicants and their professional advisors to be advised to clearlyset out their claim in
advance of mediation.
3. Applicants should be strongly urged to seek legal advice and if at all possible legal
representation at the mediations. Where subpostmasters chose not to have representation
a cooling off period could be implemented for them to determine if they wished to confirm
a provisional settlement. This should assist the applicant in understanding the reality of the
legal position, crystallise realistic expectations and give them the opportunity to consider
any offer without the pressure of a mediation day timeline which can be very stressful.
I hope this information is useful to you and please let me know if you would like to discuss further.
Yours sincerely
Director of Dispute Resolution Services
Registered in England CEDR Services Limited Company number 3271988