Courting the idea

For alternative dispute resolution to become fully integrated, judges need to embrace the process. Tony Allen reports

Few full-time judges have ever attended a mediation themselves, as its use post-dates their earlier professional practice. Many, however, have embraced the concept intellectually or instinctively at all levels, from the House of Lords to many county courts. Others remain sceptical, perhaps partly due to a perception that promoting alternative dispute resolution (ADR) is seen as a Treasury-driven cost-saving exercise on civil justice, which is never likely to commend itself to judges sensitive about their independence.

Recently, the Judicial Studies Board and the Civil Justice Council have embarked on a systematic process of raising awareness and understanding among judges about ADR and mediation in particular. Yet there has been a policy of encouragement of mediation and ADR, not just by the executive, but also by the judiciary. The Commercial Court has been making carefully crafted ADR orders for the past 10 years. Other courts have adopted such orders and, where judges believed parties needed encouragement, put pressure on them to mediate before proceeding to trial.

The Civil Procedure Rules (CPR) 1998 have built consideration of ADR into the litigation process, both pre-issue and during the action, by requiring reasonable conduct. In 2002, the Court of Appeal in Dunnett v Railtrack famously used its power under CPR Part 44.3 to deprive a successful party of its costs, specifically tying their decision to the fact that mediation would have offered far more flexible outcomes than the court could award.

In reviewing costs sanctions for not mediating in Halsey v Milton Keynes NHS Trust in 2004, although the Court of Appeal declined on the facts to penalise successful respondents for choosing not to mediate, it emphasised that if a judge’s recommendation to mediate was ignored, costs sanctions were likely, even where a successful litigant declined an inter-party offer to mediate. Then in Burchell v Bullard in 2005, the court underlined its threat to penalise those who unreasonably refuse to mediate in response to a pre-action offer, and most recently in Vahidi v Fairstead House School Trust, it encouraged use of mediation generically to settle workplace stress claims.

Pressure and encouragement to mediate

Ideally parties should want to mediate because of the intrinsic value of the process and its flexibility of outcomes, with legal advice based on training and experience of obtaining the best results for clients at mediations. Yet does such an ideal world exist in the UK, or anywhere for that matter? Probably not, because of the legal profession’s innate conservatism. Change often needs to be led from the top and ways need to be found to mobilise both carrot and stick, remembering that a stick once used can often be put back into the cupboard once its use has modified behaviour. Dunnett v Railtrack certainly had such an effect on professional thinking.

The Woolf creation of ‘cards on the table’ co-operative litigation has produced a dramatic change in culture. This change has been judge-led within the CPR framework. Confidence in mediation is growing for both lawyers in private practice through training and experience, and the same is true for judges. Mediators will take responsibility for demonstrating the value of mediations to those who attend, but judicial encouragement is still needed in this time of transition for parties to come to the mediation suite.

Mediation is a confidential process that cannot readily claim its successes without subverting one of its underpinning principles. Having extolled process confidentiality to users, it is awkward to immediately seek permission to publicise the success achieved in any case. Some successes have percolated by consent into the public arena, but so much has to remain frustratingly unsaid, and it makes it difficult for anyone interested to find out what actually happens.

The externally driven future

The current draft EU directive on mediation in civil and commercial matters is seeking to establish a consistent regime over mediation quality and standards in Europe, based on a Europe-wide acceptance that ADR is here to stay and is of value to litigants. Will there be a Mediation Act 2007, which: requires provision to be readily available to all; requires a consistent code of conduct for mediators; establishes mediator privilege from giving evidence; clarifies and extends the enforceability of mediated settlements; or, more controversially, suspends limitation periods while mediation is undertaken?

“There is a crisis everywhere in civil justice,” Lord Phillips recently remarked. It is really about the cost of access to the courts. The most wonderfully principled system in the world is no use if no one can understand it, afford it or spare the time to participate. We are in a market era even in civil justice, especially since the Brussels Convention, in which well-informed parties can shop in the best and cheapest forum.

The conundrum of paying professional participants what they want to earn at prices that the public want to pay remains unsolved. Raising court issue fees to make the civil courts self-financing has not helped. Many judges see mediation as offering a principled process to achieve earlier, cheaper and flexible settlements. The mediation industry has a responsibility to offer user quality and integrity, plus every economy of scale that growing use can generate, while encouraging lawyers to keep the cost of mediation representation down.

In Burchell, Lord Justice Ward referred to mediation’s “established importance as a track to a just result running parallel with that of the court system”. He added: “The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value.”

Any modern civil justice system must now offer a true multitrack approach to dispute resolution provision to compete for business, with excellent, accessible courts to develop law and practice, working in harmony with quality dispute resolution services like mediation, appreciated for sifting cases capable of settlement. There is a real necessity to meet the needs of the purchasers of civil justice, rather than those of service providers, whether judges, lawyers, expert witnesses, arbitrators or mediators.

Tony Allen is the director of the Centre for Effective Dispute Resolution