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The Jackson review and encouraging mediation development

Sir Rupert Jackson’s preliminary report gave relatively little prominence to ADR. ADR does not feature in its index, and, in relation to the role of the civil courts, is said to be “by definition, the antithesis of the administration of justice by the courts”, and as being “a voluntary not a coercive process”. ADR reappears in chapters on the TCC and Chancery work and on case management. Sir Rupert praises mediation as being “an excellent method of resolving many forms of litigation”, specifying business, family, commercial and personal disputes, but not personal injury. But mediation is (apparently) not a “universal panacea” –often asserted by commentators – and there are warnings of “fruitless…wastage of costs.” He seems perhaps to have been influenced by Professor Hazel Genn’s 2008 Hamlyn lectures, where she criticised “a culture of driving all litigants away from the courts and into mediation, regardless of their wishes and regardless of the circumstances of individual cases”, views since widely challenged by Lord Woolf, Sir Henry Brooke, among others.

So CEDR and the Civil Mediation Council submitted views for Phase 2, and his final report shows a marked development in Sir Rupert’s views about ADR. Not only does ADR get its own chapter (36), he makes it gratifyingly clear that those submissions changed his mind, especially over personal injury and clinical negligence mediation. Indeed, when challenging the “widespread belief” that mediation is unsuitable for personal injury cases, his footnote admits that he shared that belief until Phase 2 of his review. His openness to change of mind is admirable. This article seeks to argue that further deployment of mediation within current frameworks can deliver his objectives of reducing the cost, time and pain of civil disputes.

Further education?

His prescription for ADR is not to impose further rules in relation to its deployment around the civil justice system, but to educate both the public and the legal profession and judiciary further about its merits. His own willingness to be educated further is self-evident. But education has been going on for 20 years now and has yet to establish mediation as a widespread norm. Professor Genn’s view, as quoted above by Sir Rupert, misrepresents what mediation’s supporters say about its proper place in the UK civil justice system. We assert and accept, with Sir Rupert, that its proper place is achievable by implementation of existing obligations on court users and judges, so long as they are duly deployed, something which does not happen yet.

Is ADR “the antithesis of the administration of justice by the courts?

The informed answer to that question is a resounding “No”. Nor is settlement. Roughly 90% of civil claims settle. If 90% of issued cases were tried, as in India, Pakistan and Nigeria (jurisdictions in which CEDR has trained mediators) gridlock would reign. Our system needs settlement, based on pronouncement of legal principles against which parties can assess the value of settlement terms and the risks they face if they litigate. Mediation – indeed all settlement – takes place in the shadow of the law, with courts the last resort (to quote Lord Woolf) if no agreement is reached. Mediation needs clear law, and courts equally need effective and good quality settlement procedures. Their inter-relationship is wholly and properly symbiotic, as enshrined in the court’s duty to encourage and facilitate ADR within the CPR’s overriding objective.

Is mediation “driving parties away from the courts regardless”?

Not at present, and nor has any English supporter of ADR submitted so to Sir Rupert’s review, as his quotations make clear, even though mandatory mediation is a fact of life in the great majority of the world’s common law jurisdictions without any suggestion that this infringes civil rights. England does not want universal mandatory mediation and we do not advocate it. But what it arguably needs, as Sir Rupert makes clear, is far more frequent deployment of mediation. We do not think that mere education will achieve this. Its use has historically grown when lawyers (and perhaps their clients) have feared that they might be sanctioned for not using it, such as in 1999, when the CPR came into force, and in 2002, when Dunnett v Railtrack was decided: when, in other words, it became part of the lawyer’s self-interest to advise its use. Many clients have no idea what mediation is if their lawyer does not explain it to them. If lawyers are under no pressure to do so, mediation may well not happen.

Is mediation a voluntary, not a coercive process?

Yes, once it starts. Mediation allows safe exploration of possible changes of position and tolerable, risk-discounted, outcomes to a dispute “without prejudice” to each party’s asserted case. Once at the mediation, continued participation is and must be voluntary, with any party free to leave if mediation ceases to look productive, and free to strike poses or make offers which might be regarded as unreasonable without fear of disclosure to a trial judge, albeit within limits which the courts can and do police when invited. But there is no evidence that direct or indirect coercion to attend the process in the first place renders settlement less likely. Parties are coerced into litigation, after all, and most disputes still settle. There is very little track record of parties “huffing off” from a mediation before issues have been explored. Experienced mediators know how to initiate and maintain fruitful debate, and mediation’s high settlement testifies to its success.



Are costs sanctions enough or are ADR Orders needed?

Mediation should be deployed consensually if possible, but ADR Orders are needed where parties fail to use it, with sanctions as a backstop. Unless a judge might penalise failure to mediate whenever the CPR and the Protocols require it to be considered, or the court recommends it, or another party proposes it, the effect of such requirements will simply dissipate. Sanctions are a useful incentive to others to mediate in later cases, as happened after Dunnett v Railtrack, but were too late to help to Mrs Dunnett in securing her paddock and Railtrack in restoring neighbourly relations. The Court of Appeal in Halsey firmly endorsed use of ADR “Orders” in Commercial Court form, which will ensure that mediation is undertaken in the right case at the right time, for the benefit of litigants, which is all we seek.

Do CEDR and Sir Rupert Jackson really disagree?

Not in our view. Sir Rupert challenged CEDR’s submissions over sanctioning failure to mediate, particularly when both parties decline, and over “compelling” judges to enforce mediation requirements. CEDR’s concerns related to pre-issue ADR, which is clearly required by most protocols but is simply not enforced by Masters and District Judges. If both sides fail to mediate, it may not be because they want to go to court as a matter of principle but simply have agreed to reject early settlement attempts. The lawyers may not even have consulted their clients. Mediations often take place far too late in the life of a case, when past and future costs constitute a huge obstruction to settlement and when earlier lower cost resolution was often abundantly possible. We often mediate cases shortly before trial with thousands of pounds expended on utterly disproportionate costs, where neither lawyer nor judge has apparently considered mediation. This is why we despair of the litigation process as often conducted currently and argue both that judges should enforce pre-action ADR obligations and also should make ADR Orders in the right cases early on. This is what the parties need and deserve, whatever their lawyers may think. Indeed, Sir Rupert’s recommendation for pre-issue applications to enforce protocol obligations indicates his agreement. We enthusiastically await the first such application to enforce an ADR obligation before issue, and hope that procedural judges will insist on performance of such obligations, only asking that they be “compelled” to do so by downward pressure from senior judiciary.

Is mediation a “universal panacea”?
No, but nor is trial, nor any other dispute resolution process, if “panacea” connotes resolution to the universal contentment of all involved. To criticise any process for not being a universal panacea is meaningless. Sir Rupert rightly finds that mediation is seriously under-used, especially in personal injury and clinical negligence, and is of significant value when deployed, with high settlement rates. We add that it usefully narrows issues and checks party determination to fight to trial where unsettled. Either way, it reduces the wastefulness of court-door settlements. Judges certainly produce a definite outcome in 100% of the cases they hear (though only trying about 10% of issued cases), usually to the deep disappointment of at least one of the parties. Mediation produces consensual outcomes in about 85% of cases, often beyond what courts can order, and on terms which are reflective of the risks attendant on trial. So settlement is the norm, and in our view those settlements could frequently be achieved much sooner and at less cost. While the Jackson Review understandably concentrated on improvements in court processes, in reality the improvement of good quality settlement methods is also a proper and essential responsibility of civil justice, and one which should legitimately be required of participants. This report is a huge achievement in identifying how to eradicate some of the incontinent expense of litigation. We hope Sir Rupert will continue to explore how further positive encouragement of mediation can assist with both cost-saving and user satisfaction in all types of civil dispute.




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