The spectacle generated
by the publication of Lord Hutton’s findings is the very familiar
one of the successful and unsuccessful litigant who both put their
trust in a third party to resolve the differences between them,
only for one of them to find that the decision was deeply unacceptable.
The really interesting irony was that the successful party (which
after all had total control over which process to use and who the
neutral should be) found that success proved to be rather elusive
and perhaps could not really be described as success at all. The
public were themselves virtually a party to the inquiry, and both
they and the other very important further stakeholder, namely Dr.
Kelly's family, all appear to have been less than satisfied with
the Hutton Inquiry's outcome.
This has led the Commons Select Committee on Public Administration
to launch its own investigation into ‘government by inquiries’.
Chairman Tony Wright favours revisiting the whole process. We would
advocate that, in doing so, their starting point should be to acknowledge
that the process itself is fundamentally flawed by its adversarial
nature and lack of serious analysis of how objectives can be properly
identified and then achieved. Without this, the ensuing vacuum diminishes
the chances for dealing with serious and complex issues and misses
the chance to reach a practical solution that all parties will support.
There is also the issue of the individual, eminent in their field
though they may be, but is that person equipped to deal with the
specialist skills of consensus building expertise we believe is
crucial? And is that person perceived truly independent?
In fact, the Select Committee could do a lot worse than to look
at developments happening to the inquiries nearest relative –
the litigation system – which has recently begun to integrate
mediation into civil procedures.
A series of recent mediations in which CEDR Solve has been involved
have led us to ponder on the lessons to be learned from the Hutton
Inquiry. Our view as mediators is that no party to the inquiry,
especially the Government and the BBC, can feel any surprise about
what Lord Hutton did. They hired a judge who did a very ordinary
and ‘judge-like’ thing, namely deciding what facts were
true and false, who he believed and where blame in his view lay
as a consequence. With such a process, one party will almost certainly
emerge with a sense of disappointment or often worse. Victory too
can be painful often in terms of the huge commitment in time and
cost required for full preparation, and sometimes when the outcome
develops a hollow ring.
What we had was a full-blown demonstration of the adversarial system,
and we are entitled to ask ourselves (or perhaps the parties with
their differing senses of success) whether they think it has worked.
Does the BBC feel now that Lord Hutton merited the praise given
to him from all sides during the proceedings? Their recently published
internal enquiry reports suggest the contrary. Was it worth it all,
or would a lower key inquiry by the Oxfordshire Coroner have done
just as well? Or would an entirely different kind of process have
been better?
Consider what happened stage by stage. The dossier (now shown by
entirely separate disclosures to be almost certainly materially
wrong in content) was published. A journalist raised a story about
it based on an unimpeachable source who was somewhat misquoted.
This was taken as in effect a libel on the Government. An apology
was demanded and declined. The parties became entrenched. The temperature
and the stakes rose as a result. Apologies were demanded and rebuffed.
There was no attempt to seek anything as sordid as compensatory
damages. But victory was required at all costs, and the parties
went straight to trial, not even pausing to deal with pleadings
and disclosure, almost all of which happened at trial. What those
costs for BBC and Government will ultimately turn out to be hardly
bears contemplation. But the whole escalation was a perfect model
of aggressive pre-litigation behaviour, leading to pistols at a
very early dawn.
Did anyone think to ring a mediator before firing off the letters,
before action and before the fierce rebuttals? Did the Treasury
Solicitor or the BBC legal team consult the Defamation Pre-Action
Protocol, paragraph 3.7 of which reads:
"Both the claimant and defendant will be expected by the court
to provide evidence that alternative means of resolving their dispute
were considered."
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These alternative
means are helpfully specified by the protocol as including:
- determination by an independent third party
- mediation or any other form of ADR
- arbitration.
Was an alternative scenario for the parties to send for the modern
equivalent of Lord Goodman - perhaps Senator George Mitchell - to
thrash out their differences before the positions became entrenched,
before hurt pride took control of judgement to such an extent that
both parties trusted that an adjudicator would vindicate their respective
positions, given a good old-fashioned piece of trial by intellectual
combat? If that had happened early enough, there might have been
no real imperative to disclose to each other who the BBC's source
was, as both sides knew then or very soon after, and maybe Dr. Kelly
would not have needed to be 'outed' by anyone. Of course in this
case there was a public interest that the confidentiality of a mediation
might have been seen to be covering up. It would have been hard
to privately negotiate an agreed statement as to whether the dossier
was dodgy or not.
Is this old-fashioned way of resolving disputes
any longer acceptable in contemplation, or, in the event, satisfying
in its outcome? An alternative scenario is surely worth more than
a moment's consideration before asserting that there has to be a
public trial. Mediators who were able to lead parties from positions
of deep distrust in places as disparate and disputatious as Northern
Ireland and the Middle East could surely have a chance of sorting
out a piece of soon-admitted exaggerated reporting.
Of course advocates settle cases and mediation
sometimes fails to settle cases, at which point cases pass back
to the advocates for further forensic attention. Sometimes it is
the advocates who cause the failure of a mediation, a topic about
which it is difficult for mediators to be specific without breach
of the fundamental confidentiality that is the foundation stone
of their process. Sometimes the mediation process actually helps
to break the litigious habits of lawyers. At one recent mediation,
following highly acrimonious, mutually and competitively disparaging
correspondence between lawyers, the process led to apologies being
exchanged between them at having perhaps got in the way of their
client's respective case. A co-operative approach then led to settlement
of a difficult case where there were undoubted difficulties of a
thoroughly principled nature on each side.
But negotiations are not only fouled by aggression.
In another mediation of a high value personal injury quantum claim,
there is little doubt that the senior lawyers for each team felt
frustrated by the other side's apparent reluctance to move enough
and probably blamed the process as a result. The principal reason
for the breakdown of negotiation at the mediation was that neither
lawyer wanted to discuss the details of the damages claims with
each other either through the mediator indirectly or directly across
a table, and thus confront whether they were truly as strong as
they hoped they were. The defendants were reluctant to hire the
mediator as reality-tester, and the claimant wanted the defendant
to keep bidding until reaching an area of interest, not wanting
to signal the level at which a later Part 36 offer might be uncomfortable
at a trial. The case settled two days before trial at the figure
offered but refused by the claimant at mediation.
That kind of defensive (and in fact adversarial)
bargaining approach makes settlement remote, the mediator's role
very difficult and the mediation process vulnerable to criticism.
Such cases can sometimes, even often, settle later when change of
position seems to involve less loss of face.
No one knows how the course of the Hutton
Inquiry might have been changed if other decisions had been made.
There is just a general sense (however justifiable) that what was
decided was in many respects wrong. But we are left with the chance
to learn and to test more creative ways of tackling social crises.
Perhaps too, the adverse publicity surrounding the Inquiry has shown
the model of adversarialism to be ineffective and those cohorts
in support of moderating Dunnett v Railtrack may diminish.
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