15 October 2007
7 January 2014
3 December 2013
16 October 2013
RED Alert — spring 2014: severe costs consequences for failure to mediate: when silence is not golden
10 April 2014
2 December 2013
I was discussing judges recently with a personal injury (PI) silk. We were in the middle of a settlement meeting and were agreeing that it was in the interests of both sides to reach an agreement because the alternative was to take the dispute before a judge.
That may seem obvious, but we then went on to discuss the designated civil judges around the country and we agreed that they are of notably poor quality. It was startling just how many major cities are badly served by their senior civil judges. Not so very long ago, I overheard several barristers telling stories about judges. I was horrified at some of them.
Is it any wonder, then, that PI practitioners might not be satisfied with the service currently being provided by the courts? That's not even to mention the many examples of judges, who are no doubt excellent in their own fields, trying major PI claims without any experience of such work.
If it applies to PI barristers, it must also apply to all litigators in specialist areas. As most types of litigation are specialised nowadays, that must mean that many litigation barristers and lawyers are less than satisfied with the service that is currently being provided by the court system.
It is entirely possible that specialist advocates will gradually find that the quality of judging is so far below their own standards that they are driven to look for alternatives, as has happened in more abstruse areas of the law.
The rise of mediation
Mediation seems to be on the increase. This is despite the possibility that mediation was unlikely to be of any value in a case where there are competent advocates on either side, because good legal teams can settle cases. There is a lot of force in that point of view, but I wonder whether mediation might develop in a way that makes it more valuable.
Mediation is a worldwide phenomenon and is spreading all the time. It is important in America (particularly in insolvency, apparently) and there is an organisation of European judges committed to promoting mediation within member states. Could it take over here?
During a recent mediation both sides invited the mediator, who was a PI silk, to be "interventionist" (the other word used for that approach is "evaluative"). The aim was for him to express views about all aspects of the claim, and he did. He finished the mediation by telling us that the defendant had made his last offer, that it was a good one, that a judge would not give us more, and that we should accept it. I found that very valuable.
I am seeing this problem from a specialist's position. PI cases require careful judging, preferably by someone who knows the topic and can bring fairness and knowledge to the process. Occasionally, you get precisely that type of judge, and then it is a real pleasure to be able to tell a claimant that, whether he wins or loses, he has had a good, fair trial. Most claimants recognise fairness when they see it.
Another reservation is that sometimes one presents a case to a non-specialist and he or she manages it in a first-rate way and reaches the right result. The same applies to judgments in other cases; in one recent matter, the judge commented that he had not "laboured in this particular vineyard" previously, but nevertheless he gave a very good judgment.
Mr Justice Lightman recently said that "there is a crucial need for mediation as a palliative - as the only available recourse of those who cannot afford the costs and risks of litigation, and the chance of justice that it affords."
Interestingly, he was worried that the Court of Appeal had effectively discouraged mediation in a recent decision by refusing to impose it on parties. However, trial lawyers on both sides of PI litigation are coming to recognise that the court system is not providing a service of value and they should therefore look elsewhere.
In other words, it is possible that lawyers will drive alternative dispute resolution (ADR) forward even though the Court of Appeal has not forced it on us. Barristers and lawyers are the customers of the court service and if we decide that we are not getting what we are entitled to (hugely increased court fees may raise our entitlement, or at least our expectation), we might do what customers do all over the world whenever they have a choice: vote with our feet.
Of course, you do have to have a choice, and that means an effective alternative system for resolving disputes. There is a possibility that PI lawyers will get together to create their own system. It would not be easy, but it would certainly be feasible. It has been done in the past in isolated areas and it could be done now by agreement.
Looking, for example, at high-value PI claims, it would be possible to agree early on that the claim should be mediated. That could be a binding agreement, but it would not resolve the entire range of litigation procedures, for example the interlocutory management and the final trial.
If the parties agreed to nominate a PI specialist as a mediator, in the widest sense of the concept that person could do all the interlocutories - almost certainly far better than the district judges, who so often make such a mess of these big claims. The trial would be more difficult, but could be managed in the same way as an arbitration agreement.
An incidental effect would be a reduction of costs, which ought to appeal to the insurers in this market and to the National Health Service, which continually complains about the cost of compensating for the negligence of their employees.
Perhaps one of the innovative insurers will take the initiative and start to develop an ADR system.
Bill Braithwaite QC is a barrister at Exchange Chambers