Lord Woolf believes that his plans to encourage litigants to resolve disputes by alternative dispute resolution (ADR), the centrepiece of his reforms, is “going to take a substantial period of time until we get where we really want to”.
He said one reason is that mediation, a form of ADR, has not been made compulsory. However, he feels that if it was then it would be “inconsistent with my philosophy that people should be able to go to courts if that’s really what they want”.
This flies in the face of a ruling last month by Mr Justice Colman in the Commercial Court, who decided that proceedings between Cable & Wireless and IBM UK should be stayed in order to enforce ADR clauses in contracts.
Speaking at the South East European Regional Conference on Dispute Resolution, Woolf conceded that judges should encourage litigants to go to mediation by asking them to act reasonably or by way of being denied some of their costs.
This opinion upholds the findings in Dunnett v Railtrack, in which Railtrack, which won at appeal, was denied payment of costs by the other side because it had dismissed the idea of ADR, despite requests from the claimant and the court.
“Mediation should be voluntary, although it doesn’t mean to say that one party should be able to force the other party into court where a substantial amount of costs will be incurred,” he added.
Woolf believes that there are some circumstances, such as where “one party is not behaving honestly”, in which mediation will never produce results.
He also welcomed the concept of parties not being charged for taking part in mediation. He commented: “I would be very happy if it’s possible to run an effective system without charging the parties, because that would make it more attractive to those who use it.” English parties currently pay heavy fees for mediations.
Woolf also favours contracting out mediation services, because it frees up judges for the courts and creates a team of skilled mediators. He added that a lack of quality mediators puts off parties from trying mediation.