Margaret is a Visiting Research Fellow at the University of Essex School of Law, and is a valued member of Essex CAJI. So we thought we would catch up with Margaret so we can share with out readers her experience as a Research Fellow and a little more about her work.
Can you tell us a little more about what the life of a visiting research fellow is like?
I’m not sure my experience is typical, and no doubt it’s different in different institutions. For me, it can be frustrating because I’m on the fringes of everyday life in the university (and physically not near the campus) and so the opportunities to contribute can be limited. Sometimes I’m brought in to work on a research project – I’m currently involved in an ESRC-funded project on mediation of medical disputes, led by Dr Jaime Lindsey, formerly at Essex and now at Reading. For that, my time is costed into the grant, and I serve as a consultant, co-author articles, and carry out empirical work (interviewing, observations, etc).
Other work I do with my Essex hat on is unfunded, such as serving on the Academic Panel of the Administrative Justice Council (2019-2023) and attending conferences and events involving practitioners in administrative justice (ombuds, mediators) and policy makers (Ministry of Justice, Department for Education). I think of it as being a sort of ambassador, linking the university with other bodies ‘doing’ administrative justice on the ground, feeding into policy discussions, and highlighting the need for empirical research on how people experience administrative justice.
Can you tell us a bit about your previous work with UKAJI which, as you know, was the inspiration behind creating CAJI?
I’m so proud of what we did with UKAJI and feel privileged to have worked with such amazing people. Maurice (Sunkin) and Andrew (Le Sueur) established UKAJI as a national research network on administrative justice, funded by the Nuffield Foundation. The context when UKAJI was established was that the Administrative Justice and Tribunals Council (AJTC), an independent oversight body, had recently been abolished, leaving a huge gap. There was a need for a body to be a catalyst for examining administrative justice through research.
I was brought in early on, with Varda Bondy, formerly Research Director at the Public Law Project, with whom I’d worked on research on ombuds’ use of mediation and on mediation and judicial review, and who had also worked with Maurice researching judicial review. It was an ambitious project, to bring administrative justice out of what Nick O’Brien has described as its dusty corner full of paperclips and to expose it as an exciting and hugely relevant area of research. Possibly too ambitious, because administrative justice is not well defined or understood and it has an unwieldy character spilling into so many other research interests – not only law but also sociology, psychology, human rights, economics.
There’s so much to say about what we did, with a committed network of academics and practitioners. In a nutshell, it was about identifying what we know, and what we don’t know, about administrative justice from research, and then trying to kickstart research activity in the gaps. It involved bringing people together, spotlighting current research, supporting cross-disciplinary discussion, highlighting opportunities for research. We supported a number of reports (for example, on digitalisation, on sources of administrative data, on indefinite immigration detention, on mapping health care bodies involved in complaints). We gave early-career researchers a space to promote their work. I ran a knowledge exchange project, called A Place at the Table, which was a UKAJI project supported by a small grant from the department and funding from Garden Court Chambers. It brought people together to discuss young people’s participation in mediation of disputes about their education support, the first time this issue had been looked at following the legislative change in 2014 that clarified young people’s rights to lead on their own cases. Our final project was to produce a Research Roadmap, with an overview of past research, challenges, and an agenda for research priorities, and this was used by the Administrative Justice Council when it was set up in 2018. And it’s good to know that the CAJI blog continues to be a valuable resource and an archive illustrating administrative justice’s reach and relevance.
As a certified practicing mediator and as an academic, how far do academic observations and research feed into your practice as a mediator and vice versa?
I’m what my colleague Carolyn Hirst refers to as a ‘pracademic’, although I would probably align more with the ‘prac’ than the ‘ademic’ part of the equation! My practice informs my academic work, and vice versa. For example, the idea for the 2018-19 project A Place at the Table came out of my mediation practice – I’d been working as a mediator in special educational needs and disabilities (SEND) for nearly 20 years and was concerned that as practitioners, we weren’t seeing many young people taking part in mediation, even though they are the centre of the issue being discussed. When writing on the Department for Education’s proposals (in its 2022 Green paper) to make mediation mandatory in SEND, I was able to combine my role as a researcher with that of a practitioner to argue against this proposal. (Which I’m glad to say has been shelved, at least for now.) I’ve also used my mediation practice as a lens through which to research mediation in judicial review (with the Public Law Project, 2009-2011) and forms of mediation used by ombuds in the UK (Nuffield, 2014).
My current work on Dr Lindsey’s medical treatment research is informed by my knowledge of mediation practice, techniques, and models. We’re observing mediations and interviewing mediation participants to gather evidence on whether, and if so how, mediation can be a form of therapeutic justice in medical treatment disputes. In 2019 I published a book with Nick O’Brien, on human rights and administrative justice, that comes very much from both our hearts as practitioners – his as a tribunal judge, and mine as a mediator.
And as you say, this works both ways. I’m currently researching disability rights, mediation and dementia for a journal article I’m writing, and engaging with the academic literature on capacity and disability is informing my practice in mediating disputes involving older people. I recently became accredited by the Elder Mediation International Network to do this work, and it’s fascinating to bring into my mediation practice what we know from academic research on ageing, on health and social care, and on housing and other areas. I’ve written about mediation and social care disputes for the Human Rights and Social Care Forum blog. It’s curious that mediation hasn’t captured the imaginations of those working in social care; it’s such an obvious fit.
I know you have been researching the use of administrative mediation. Can you tell us a bit more about your recent work in this field?
I was invited to take part in a roundtable discussion at the International Mediation Congress in France in October 2022 to discuss administrative mediation. This isn’t a familiar term here, but it basically means mediation of a dispute involving ‘the administration’ – public bodies and government departments. Colleagues from France and Spain at the roundtable spoke about the situation in their countries, and I described how it is used here in the UK, particularly in SEND but also in a few other areas. Then last year the Council of Europe published a new guide on administrative mediation, following a consultation the Council carried out with Member States. With a colleague in Strasbourg, Karim Salem, I wrote a two-part blog post for REALaw on the guide and the use of administrative mediation in the UK.
I’d like to raise awareness about the distinctive nature of this type of mediation and about the Council of Europe guide. It’s an under-studied aspect of administrative justice, but as we know, with the developments in SEND and the increasing use of mediation by the Parliamentary and Health Service Ombudsman, it’s expanding hugely, but mostly under the radar. We need more scrutiny, including empirical research, to better understand what’s happening on the ground.
In what types of disputes might administrative mediation be employed?
Potentially it can be used in any complaint or dispute in which one party is an individual and one a government department or public body. In France it’s used for disputes raised by public employees and also for disputes over welfare benefit decisions. The national ombud in France has used it for disputes engaging equalities and human rights. Here in the UK, it has a statutory role in SEND, in which legislation requires families to consider mediation before lodging a tribunal appeal, and in fact mediation is mandatory for the local authority where the family wants to use it. It’s also used by the Parliamentary and Health /Service Ombudsman, as an alternative to investigation. (The Public Administration and Constitutional Affairs Committee has recently published its scrutiny report on the PHSO, and we can see there that the select committee is positive about the ombud’s increasing use of mediation.) It’s used by HMRC for some tax disputes. It’s used for health care disputes involving the NHS, including disagreements over treatment and for clinical negligence claims. It’s been explored in cases that come before the Court of Protection, involving care and welfare decisions by local authorities. It has enormous potential in disputes involving social care and care homes, and one of my aims as an accredited elder mediator is to raise awareness of its value in this area of life.
I know that the use of administrative mediation is currently quite limited – what are the current obstacles to introducing a more widespread acceptance of administrative mediation? Why is it important to strengthen the use of this, and what efforts are currently in place to bring this into practice more?
Currently the use of administrative mediation here is limited, although as explained above it is growing in some areas of administrative justice. In my view, there are a number of obstacles. Administrative justice has never been a headline-grabbing area of the justice system – it’s been called the ‘Cinderella’ of the justice system, despite it being about everyday matters that all of us face every day. Funding is an issue: unlike the courts and tribunals, funded from central government, mediation is usually funded privately, by the parties, or in the case of social care or SEND, by local authorities. What that means, especially now with local authorities in severe financial constraints, is that mediation is under-resourced. This makes no sense when promoting mediation is part of UK government policy, as demonstrated by the Ministry of Justice’s decision to make mediation mandatory for small claims (under £10,000) in county court and the Department for Education’s push for more mediation in SEND. Another problem is that we lack empirical evidence on mediation’s role in administrative complaints and disputes. I know from experience, from researching mediation for more than 20 years, that it’s a difficult area to research because of what I call a ‘shroud of secrecy’ that means people are often unwilling to share information. Confidentiality of mediation discussions is an important principle of mediation, but confidentiality of outcomes is not required, and parties can be encouraged and supported to share the outcomes of mediation or issue joint public statements. Researchers need to be able to observe mediations and gather empirical evidence. This is so important in disputes involving public bodies, which, unlike private and commercial disputes, usually have not only the interests of the parties at stake but wider public interests and concerns about transparency and accountability of public body decision-making.
What I’d like to see funded, initially, is a sort of mapping project that identifies what administrative mediation is happening here in the UK and what we know about it from research (and what we need to know). In this space, mediation is not, or not merely, a settlement mechanism. It’s a resource for informing and educating; for building trust between citizen and state; for underpinning human rights, especially social rights; and for improving the way administrative decision are made and conveyed. The measures of ‘good mediation’ are different from those in private or commercial mediation, and principles like confidentiality and neutrality require a different, more nuanced approach. A mapping project could then help us to identify what ‘good mediation’ looks like in administrative disputes and if there are areas where mediation has a potential to facilitate open and honest discussion, where we might develop it further, and what evidence we need to do so. We need updated research on mediation in judicial review and on what forms of mediation our public-sector ombuds are using. We also need comparative research and exchanges so we can learn from the experience of our European neighbours, who are moving forward on developing best practice and guidance on administrative mediation. We need to contribute to that. And it’s complicated here because devolution means we don’t have one administration or one approach, and we need to engage with that rich administrative tapestry we have in the UK.
Essex CAJI would like to extend our thanks to Margaret for taking the time to chat with us. You can read more about Margaret in Essex CAJI’s Annual Report 2022-23.
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