Juggling act

1. “Mediation has got out of hand. Judges have given up trying cases and just try to make us all settle.”

This widely-held view was given eloquent expression recently by Michael Beloff QC. His comments came in the course of a general lament that the role of advocacy was declining. He said: “Judges increasingly consider it their role to persuade parties not to litigate, rather than to decide litigants’ disputes… Even in public law cases… the Lord Chief Justice has stressed ‘the paramount importance of avoiding litigation wherever this is possible… Alternative dispute resolution… is the flavour of the decade.” (‘England’s dying art’, New Statesman, 16 February 2004.)

Beloff is certainly right that alternative dispute resolution (ADR) is the flavour of the decade. The judges’ promotion of ADR is rooted in the terms of the Woolf reforms’ overriding objective and has the full support of a government committed to reducing delay (and no doubt reducing public spending on the court establishment at the same time).

The problem for the legal profession is that grumbling of this kind will always be seen as being driven by self-interest. Those clients who find their way to a settlement through mediation are delighted. But what of those who don’t find their way to a settlement? They invariably emerge better informed about their opponent’s case and intentions. And they can get into court more quickly and have their cases tried on fresher evidence because of the reductions wrought by mediation in the backlog of the court list. That is why the Government can justifiably talk about mediation as a means of improving access to justice.

It is an intrinsic social good for the courts to be freely available to resolve the disputes of citizens and to do so correctly, fairly and without favour. But it is not a requirement of the rule of law that those courts should be so busy that a one-week case needs to take two or three years to get into court.

2.“The modern use of mediation infringes the citizen’s right of access to the courts under Article 6 of the Human Rights Act.”

A close relation of the first proposition above is the suggestion that the present use of mediation infringes a citizen’s right under Article 6 of the Human Rights Act (HRA) of freedom of access to the court.

The case of Halsey v Milton Keynes is currently being heard before the Court Of Appeal. Lord Lester of Herne Hill is addressing their Lordships on behalf of the Law Society to the effect that orders which compel unwilling parties to mediate are a breach of the HRA.

The HRA argument is somewhat unreal. The courts have long used costs orders at the conclusion of litigation to express their disapproval of those who fail to negotiate or who spurn reasonable offers of settlement (see, for example, Cutts v Head (1984)). Nobody can dispute that the court has to manage its diary.

Every case that settles enables the speedier and more efficient trial of the irreducible core of cases that will fight. In other words, it enhances the Article 6 rights of others. The idea that requiring the parties to attend on a given day before a neutral facilitative mediator crosses some impermissible line and becomes an infringement of human rights simply seems wrong. The process barely delays at all their day in court, should they ultimately require one.

Above all, the parties are not being ordered to settle; they are merely being ordered to attend at the scene of a potential negotiation.

In any event, mediation is not going to become compulsory in every case. None of the parties or the interveners in the Halsey appeal are suggesting that it should. Not even the European Commission is yet going that far. There are clearly cases, such as the test cases that will always arise in both public and private law, in which even the most ardent advocates of mediation would accept that it is inappropriate.

A particularly interesting category is that of the ‘complete try-on’. Counsel are often heard to resist mediation orders on the basis that the claim (or the defence) was so unmeritorious that their client should be spared the cost of mediation and the matter should be brought before the court for resolution as soon as possible. The submission apparently made to Judge Blackburne by counsel for Shirayama (2003) exemplifies the point well: “We allege that Danovo is trespassing. Either it is or it is not… There is nothing to be gained by mediation. We have no wish to bargain away our rights.”

One can almost hear the muffled shouts of hooray from the backwoodsmen. But the fact is that it is perfectly possible to attend a mediation, say that your case is extremely strong and that you will only accept total victory together with all your costs. It is perfectly possible to maintain and justify that position throughout the day of the mediation and, above all, it is perfectly possible for the other party to agree with you and concede all points at the end of the day.

Mediation does not have to involve compromise. It was the possibility of this kind of outcome that led to Railtrack being penalised in costs in Dunnett. At the end of the day, Mrs Dunnett had no claim, but she might have come to appreciate that fact in the course of a well-conducted mediation and thus saved all parties substantial costs.

3. “Mediation is flattered by its current success. The more coercive the courts become, the fewer cases will settle.”

For most of us, a more important question than the human rights issue is whether it will damage the process of mediation to impose it on one or more parties that are unwilling. It was being argued strongly by (most of) those representing the mediation community before the Court of Appeal in Halsey that the present prosperity of mediation owed much to the fact that participation was voluntary in the vast majority of cases.

But mediators generally do not appear to find that unwilling parties are less likely to settle. Nothing is more satisfying than to reach a deal at a mediation to which the parties have come kicking and screaming.

4. “The standard commercial court ADR order is not actually coercive, but merely encourages the parties to mediate.”

There is no doubt that those who drafted the standard order were sufficiently nervous of the human rights issue to resort to some pretty woolly language in the operative clause: “Parties shall take such serious steps as they may be advised to settle their disputes by ADR….”

It is possible to be misled into thinking that this order does not require the parties to mediate. Mr Justice Arden in Kinstreet suggests that a party could appoint a mediator under this order and then, if it chose, ignore them. In my view, it is a more coercive order than that.

The idea that it leaves the parties with any discretion in the matter would strike most practitioners as novel and dangerous. I am aware of no cases in which that order has not been followed by a mediation.

5. “Facilitative mediation is only one of several forms of ADR.”

The truth is, that in domestic civil litigation, mediation on the neutral, facilitative model, as promoted by the Centre for Effective Dispute Resolution (Cedr), is the reigning champion. Other forms of ADR, such as early neutral evaluation, linger in the textbooks, but have failed the Darwinian test and, to the best of my knowledge, are defunct.

6. “Mediation is a bore; it is just no fun compared to litigation.”

Litigation, for most of us, is a buzz. Robert Webb QC, when still at the bar, commissioned a cartoon to decorate his personal cards. It showed a crocodile in a barrister’s wig leaning across to his client and asking confidentially: “Settle? Where’s the fun in that?”

Mediation, and those of us who traffic in it, can – let’s face it – be boring and sanctimonious. We think we’re on the side of the angels. We are the swots, the Softy Walters of the legal world.

Our studied neutrality is part of the problem. There are to my knowledge no jokes or literature about mediators. Mediator John Deed? I do not think so. “That was such an exciting mediation, I really think we should continue our discussions over dinner.” Hardly. And Bleak House would have been a different book if the Jarndyce family had been ordered at the case management conference “to take such serious steps as they were advised…”.

Whether mediation will ever support a literature of its own, and whether it will ever be quite as sexy as full-on litigation, we will have to wait and see. Some of us may never truly love it – but it is here to stay. The Court of Appeal’s imminent judgment in Halsey is unlikely to do anything but speed its advance.

Bill Wood QC is a commercial barrister and mediator at Brick Court Chambers