24/03/2024
I’ve just watched Mr Bates vs The Post Office, and thought that it would be helpful to clear up some misconceptions about mediation which the series might have created.
The series is a four part dramatisation of the way the Post Office treated its sub-postmasters and sub-postmistresses when the Horizon accounting software purported to show that money was missing from their accounts.
In episode 3, the Post Office agreed to engage in mediations with individual sub-postmasters and the drama portrayed what happened in one specimen mediation where a sub-postmistress, Pam Stubbs, went to present her case to the Post Office executives.
I should say that I understand, from interviews I have heard on the radio, that the writers and the producers did their best to give an accurate portrayal of what happened. While some scenes are imagined, the drama portrays actual events, and uses the actual words of the Post Office and its officers.
If the mediation as depicted is an accurate representation of what actually happend, there were a number of things about Pam Stubbs’ mediation which, as a mediator, I found very surprising.
The very first thing that stood out was that there was no mediator, so that it was not a mediation at all: the whole point of mediation is that an independent and impartial third party (ie the mediator) is involved to assist disputing parties to resolve conflict. By definition, you can’t have a mediation without a mediator!
A number of further points arise from this.
One of the principal aims and functions of a mediator is to ensure that in the mediation both (or all) parties are, so far as possible, on an equal footing and comfortable with the way the mediation is set up. This means that, for example, the meeting should take place:
in a neutral venue;
in private; and
if possible both parties should be represented by more or less the same number of people.
In the drama the “mediation” meeting took place in very swish corporate offices in London. There is nothing wrong with that, provided that both parties felt comfortable in the venue. However, if the “mediation” took place as portrayed, it would seem unlikely that Pam Stubbs would have felt comfortable in the venue.
Firstly, the room used in the drama was set up like a court room with Pam Stubbs sitting on her own facing a long desk behind which sat a row of eight or more people, presumably Post Office executives and lawyers, rather like a panel of Supreme Court judges. Such an arrangement would clearly be intimidating to anyone, whether intentionally so or not.
Secondly, the meeting took place in a room with glass walls and it was possible to see people walking past in the corridor outside, and presumably the people outside could look in. The room was not private at all.
Another function of a mediator is to encourage the parties to take part in the meeting with an open mind, to listen to the other party, and to explore possible solutions to the dispute. However, in the drama, the people representing the Post Office were not there to listen to what Pam Stubbs had to say, but saw their role as limited to explaining to her that there was no basis to her complaints. We now know that attending the mediations with an open mind could have saved the Post Office a lot of money.
I do not know if mediators were appointed in the Post Office mediations. If not, the presence of a mediator might have enabled the meetings between the Post Office to be more productive, but sadly, I think that the mediation scheme was doomed to failure from the start.
The presumption made by the Post Office and seemingly by the Judges who tried the prosecutions brought against the sub-postmasters was that the Horizon software worked perfectly. Quite plainly, for an individual defendant to challenge that presumption he or she would have had to obtain expert evidence not only from an accountant but also probably from an IT expert - if, that is, Fujitsu would have agreed to provide access to an independent expert to examine its software. The cost of obtaining such expert evidence would have been simply beyond the means of any of the Defendants.
Without such expert evidence, it is difficult to see how a mediation could succeed.
So to sum up:
A mediation should always involve an independent and impartial mediator whose role and function is to ensure that:
*as far as possible, the mediation is set up so as to promote equality between the parties; *
*the mediation meeting takes place in a neutral venue and in private;
*the parties, as far as possible, are represented by more or less the same number of people.
*the rooms used should be organised so as to place the parties in a position of equality
*the parties should attend the mediation with an open mind and be open to the possiblity that the other party has a valid point of view.
*if possible, any necessary expert evidence should be obtained before the mediation.
As a final point, the Post Office scandal raises a question about the presumptions that Judges should make when a prosecution turns on disputed computer evidence. I believe that currently the presumption is that software works as it is claimed to work. The Post Office scandal shows that the presumption is plainly wrong, and that prosecutors should be required to prove their cases by the good old fashioned method of providing documentary evidence.
This article was first published on LinkedIn.
