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the barrister
Mediation as approximate justice? A review of Sir Gavin Lightman’s S.J Berwin Lecture By Tony Allen, Director of CEDR
S
ir Gavin Lightman’s target for his S.J. Berwin Summer Mediation Lecture was the cost of litigation, the consequent inaccessibility of justice and how mediation might provide a solution, were it not for the difficulties placed in its way by the Court of Appeal in Halsey v Milton Keynes NHS Trust [2004] EWCA (Civ) 576. Ironically, despite its trumpeted adoption of the European Convention on Human Rights (ECHR), the Government has in his view itself impaired access to Article 6, rights to a fair trial, by emasculating and privatising funding arrangements. This irony is further counterpointed by the Court of Appeal’s suggestion in Halsey, that for a court to order unwilling parties to mediate infringes exactly the same provision of the ECHR. He recorded the successes of mediation, now seen as appropriate for almost every sector; its use encouraged by judges; its practice satisfying for professionals engaged in it, though a possible source of negligence allegations if ignored; and its theory the subject of academic study. He sees mediation as being a palliative to the expense and pain of litigation, bringing something like justice to those otherwise unable to seek it. His main attack was on the reasoning in the Court of Appeal in Halsey, a decision seen generally as having cooled the mediation market after the shock of Dunnett v Railtrack. This is not altogether fair on Halsey. It is good to see it cited in the Solicitors Code of Conduct 2007 in the notes to Rule 2.30 as a warning that a party who refuses ADR may face costs sanctions, hence requiring solicitors to advise on its use in any dispute. It is also very hard to gauge how big the mediation market truly is now, and what impact Halsey truly has had, as few reliable statistics are published about case numbers. However, Sir Gavin’s concerns about Halsey are the dicta that: • for a court to require parties (including presumably both or all parties in the same case) to mediate against their will breaches Article 6 of the ECHR; and • the burden is on a party seeking a costs sanction for refusing mediation to attack that refusal, rather than on the refusing party to justify it. Few commentators have understood the human rights point since it was argued, apparently without intention, by the Law Society as intervener and accepted (albeit obiter) by the Court. Ordering mediation does not exclude parties from the courts. As Sir Gavin noted, it merely delays the litigation process for a short period to see if settlement is possible, without in any way barring the road back to the court-room. Alternative dispute resolution of this kind (unlike arbitration, which bars access to the courts completely, and yet is fully supported by ECHR decisions) is not a separate dispute resolution process.
It is not in the true sense “alternative”. Litigation and mediation are symbiotic and interdependent. No one can be compelled to settle, nor even to engage longer than they wish in the mediation process. They can leave without fear of retribution at any later hearing, by virtue of the confidentiality which surrounds the process. There are plenty of delays inherent in the civil justice process, such as protocol compliance before being able to issue, meeting disclosure requirements and so on, likely to slow up the road to trial far more than the by-way of mediation, especially as settlement is the norm anyway. Sir Gavin enquired whether the Court of Appeal were aware of the true nature of mediation as not requiring a stay like arbitration, and of the extent that other common law jurisdictions mandate mediation around the world. Submissions to the Court from interveners like CEDR and ADR Group and the Civil Mediation Council were of course mainly directed towards costs sanctions arising from refusal of an inter-party offer, as this was the factual thrust of Halsey and Steel v Joy, the conjoined appeal. But there was sufficient in all these submissions to make the position clear to the court on these points. Indeed, in the CEDR submission, I pointed out the fact that the ARMS (Automatic Referral to Mediation Service) pilot was due to start at the Central London County Court almost immediately, based on the successful mandatory pilot in Ontario. The recently published report Twisting Arms by Professors Hazel Genn and Peter Fenn reflects on how the Halsey decision effectively torpedoed the ARMS pilot by undermining the court’s authority to mandate mediation, despite its being authorised by a formal amendment to the CPR approved by the Rules Committee! The burden of proof where the losing party seeks relief from a winner who refused mediation is a more ticklish issue. Sir Gavin’s own decision of Hurst v Leeming led the thinking in the post-Dunnett, preHalsey period. I acknowledged in the CEDR submission in Halsey that Sir Gavin at least impliedly regarded the burden as being on the party refusing mediation to justify that. The Halsey judges worked from the “general rule” enunciated in CPR Part 44.3(2) that the unsuccessful party pays costs, though the court can make a different order. Indeed, courts have made many “different” orders on costs since the CPR in ways that would never have been contemplated pre-CPR. The “burden of proof” may be elusive. After all, even on Sir Gavin’s view of the burden, Mr Leeming QC satisfied it against Mr Hurst, and the Halsey judges suggested that the burden on the unsuccessful party may not be onerous anyway. Furthermore, the CPR and the protocols themselves suggest that it is for reluctant or refusing parties to justify their refusal – take the Ungley Order, now enshrined in para 4.10(9) of the Practice Direction to CPR Part 29, and specifically approved by Halsey, where the party refusing to use ADR must be prepared to justify this
view to the judge at the end of the trial by a witness statement lodged in advance. I am not sure that all judges in procedural mode are fully aware of what mediation is and can do, or that they all recognise, as he suggested, that “there is no civil case in which mediation cannot have a part to play in resolving some (if not all) of the issues involved”. Few judges of any seniority were in private practice when mediation was around. Nor perhaps is there enough general enthusiasm for both encouraging and facilitating use of ADR, both words being used in CPR Part 1.4(2)(e) in defining this instance of active case management. Wise judges will not see mediation as competition, or something to be curbed, but as a companion process which can free up the mainstream litigation system to deal with cases worth trying quickly and inexpensively, assuming that delay almost always involves cost. Sir Gavin’s title - Mediation: an approximation to justice - came as a bit of a shock. He suggests that mediation is as close as most people can get to the real thing. This perhaps pre-supposes that justice is what courts infallibly deliver, not a view espoused by Sir Gavin in his 2003 lecture entitled Mediation the first and litigation the last resort. Mediation is strictly about delivering not justice, but choice and responsibility to litigants, something rather more relative. It is also about delivering the certainty of a personalised process akin to a day in court to parties for whom settlement at arms length rather than a chance to speak out at trial is the norm. This renders mediation better than second best. But the idea that mediation is as close to justice as most people can afford to get was on the face of it welcome music to the ears of the great and good of the mediation world who heard Sir Gavin’s lecture, staged in S.J. Berwin’s spectacular roof garden. His underpinning theme that civil justice is too expensive and therefore that lawyers cost (or earn) too much, would have been less welcome to those mediators with conventional legal day jobs. His own testimony that “I have often seen parties broken by the [litigation] process and by the cost of litigation” is telling and must not be ignored. It was ironic that over the canapés I overheard a remark to the effect that everyone was earning lots of money from litigation and M & A and all was therefore right with the world. I rather doubt either the accuracy or the wisdom of that proposition outside the heady atmosphere of the London magic circle and its immediate environs, nor even everywhere within it. His warning should also have reminded mediators that their prime responsibility is to deliver cheaper and quicker alternatives to litigation trial while still offering “an approximation to justice” – that is, something nearly as good. Merely to establish yet another expensive dispute resolution process will consign mediation to the same fate and reputation as arbitration.