Mediation in libel cases looks likely to become a common way of settling disputes. Mark Manley comes up with five reasons why this is a positive step forward. Mark Manley is partner and head of commercial litigation at Brabner Holden Banks Wilson in Liverpool.
I represented a media defendant at a mediation in a multi-party libel case last month. The libel insurers tell me this is a first in this country to their knowledge. It had a very satisfactory outcome – we settled a very difficult and highly emotive case that left both parties with some dignity.
The claimants were not "money grabbers" – they felt very aggrieved and were concerned to know what steps the defendant had taken to avoid the same mistake being repeated.
I explained how seriously the defendants considered the error, how they had changed programming disciplines to catch such mistakes and how they had embarked on a huge training programme to educate their presenters and journalists in avoiding these claims.
I am certain that demonstrating that this media client genuinely took on board the problem, and was doing something about it, affected their attitude to settlement.
The claimants wanted responsible journalism as much as, if not more than, damages. Such issues would not have been raised in the adversarial courtroom. Mediations allow factors outside of evidence and pleadings to come out. Sometimes those factors are the most important.
With the advent of "no win, no fee" conditional fee agreements, defamation actions are available to all potential claimants, providing they can pay the insurance premium necessary to cover the defendant's costs if their case fails. So more people are able to sue for libel and slander than ever before.
Mediation is now vogue in the UK, helped by the Civil Procedure Rules brought in on 26 April 1999, which envisage mediation in the overriding objective (rule one) and allows the parties to request a one-month stay to attempt settlement.
But mediation in libel cases? I have heard libel lawyers say: "Emotions are too high for these cases to be resolved at mediation." I accept that settlement by mediation will not work in all libel cases – imagine mediation in Hamilton v Al Fayed – but mediation in a defamation case is a step likely to bring about a settlement.
There are five reasons for this: First, in a lot of defamation cases the claimant wants the defendant to apologise. Mediation provides a forum to "get things off your chest"; second, costs in defamation cases are usually high. One of a mediator's main tools in helping the parties to settle is to remind them of the implications of not settling, including costs; third, media defendants – and their insurers – will usually prefer an amicable settlement if their defence is not that strong, rather than taking their chances with unpredictable juries; four, equally, a media defendant's lawyer can tell the claimant, again to their face, that a success at trial does not necessarily mean the end of the case and paying costs. This is the time to state that if no settlement is reached at this mediation and the jury give an unrealistic award of damages, an appeal will be lodged. By the time this point is made they are likely to have received an apology and "had their say"; and finally, mediations are a more neutral forum than the courtroom where the lawyers adopt a gladiatorial posture. At mediation, the armoury isn't so necessary.
If this was the first mediation in a libel case in the UK I am certain it won't be the last.