There are two questions to consider. Does the court at present have any powers under the CPR to order the parties involved in litigation to attempt to mediate their dispute? If the answer to that question is yes then would such an order breach a litigant’s rights to a fair trial under Article 6 of European Convention on Human Rights which says :
“In the determination of his civil rights and obligations …everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgments shall be pronounced publicly…”
According to the Master of the Rolls, Sir Anthony Clarke, the answer to the first question is emphatically yes. In May 2008 he made a speech at the Second Civil Mediation Council Conference. He said :
“To my mind the power exists under a combination of the court’s case management powers under CPR 1.4(2)(e) which specifies that ‘encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure’ and CPR 3.1(2)(m), which enables the court to take any step in managing a case to further the overriding objective. It seems to me that furthering the overriding objective in this sense calls for the case management power to be applied consistently with the duty under CPR 1.1(2)(e) which requires the court to take account of the needs of all litigants and the court in furthering the overriding objective; to further access to justice for all. Equally, it is surely part of the parties’ duty to assist the court in the furtherance of the overriding objective that they should take active steps to take part in mediation (CPR 1.3).”
Sir Anthony Clarke reasons that nobody could sensibly argue that the case management judge could not order the parties to meet on some future date to discuss settlement. Indeed such orders appear standard in some courts without ever being challenged. Further nobody could sensibly refuse to meet to discuss settlement whatever the nature of the case. It is therefore a small step to order that a mediator be present at that meeting to facilitate the negotiation. He says such orders could be made routinely at allocation or as anticipated by CPR 26.4(1). It is implicit that he believes a mediator will add great value to a joint settlement meeting. Sir Anthony repeated these views at a FOIL sponsored debate on mediation in personal injury litigation in London on 15th January 2009.
Would such an order breach the right to a fair trial that is guaranteed under Article 6? Lord Justice Dyson in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 believed that it would. Dyson LJ said :
“We heard argument on the question whether the court has power to order parties to submit their disputes to mediation against their will. It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.
The court in Strasbourg has said in relation to article 6 of the European Convention on Human Rights that the right of access to a court may be waived, for example by means of an arbitration agreement, but such waiver should be subjected to ‘particularly careful review’ to ensure that the claimant is not subject to ‘constraint’. See Deweer v Belgium (1980) 2 EHRR 439, para 49. If that is the approach of the ECtHR to an agreement to arbitrate, it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6. Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it.”
Lord Justice Dyson’s comments were summarised as establishing that compulsory mediation would be a breach of Article 6 in Hickman v Blake Lapthorn [2006] EWHC 12 (QB). However both Sir Anthony Clarke in his speech referred to above and the then Lord Chief Justice, Lord Phillips in a speech he made in India in March 2008 pointed out that Lord Justice Dyson’s comments on Article 6 were obiter dicta because his judgment concerned the question “when it would be appropriate to penalise a party who had refused an offer to mediate with an adverse costs order?”
Lord Phillips believed ordering parties to mediate could be a step to far. He said:
“I think that if a litigant in Europe was subjected to such an order, refused to comply with it and was consequently refused the right to continue with the litigation, the European Court of Human Rights at Strasbourg might well say that that he had been denied his right to a trial in contravention of Article 6.”
It appears to be his view that it would be a breach of the convention if the consequence of failing to comply with the order would be that the offending litigant lost his right to a trial.
The first attack on this obiter opinion came from Mr Justice Lightman, in a speech he made entitled “Mediation: An approximation to justice” after he had retired from the Chancery Division. His comments about a superior court were described with characteristic judicial understatement by Lord Phillips in his India speech as “punchy stuff”, perhaps because Mr Justice Lightman J had described Dyson LJ’s views as “clearly wrong and unreasonable”!
Mr Justice Lightman suggested the Court of Appeal had misunderstood the mediation process. He said at paragraph 8:
“An order for mediation does not interfere with the right to a trial: at most it merely imposes a short delay to afford an opportunity for settlement and indeed the order for mediation may not even do that, for the order for mediation may require or allow the parties to proceed with preparation for trial;”
Clearly he was not envisaging the scenario Lord Phillips describes where the right to trial would be withdrawn if a party did not mediate following a court order to do so. Sir Anthony Clarke drew the distinction between an arbitration agreement and an agreement to mediate:
“15…Does mediation require parties to waive their right to a fair trial?
14. The answer is surely no. Mediation and ADR form part of the civil procedure process. They are not simply ancillary to court proceedings but form part of them. They do not preclude parties from entering into court proceedings in the same way that an arbitration agreement does. In fact all a mediation does is at worst delay trial if it is unsuccessful and it need not do that if it is properly factored into the pre-trial timetable. If the mediation is successful it does obviate the need to continue to trial, but that is not the same as to waive the right to fair trial. If it were any consensual settlement reached either before or during civil process could arguably amount to a breach of Article 6, which clearly cannot be the case.”
I conclude from this that an order to mediate which did not interfere with the parties right to return to the litigation following a failure to reach a mediated settlement, and proceed to a trial if necessary, would not contravene Article 6 of the European Convention on Human Rights. That begs the immediate question, what would be the point of such an order? Why would one reluctant party not simply ignore the order? What sanctions could the court impose on a party that refused outright to attend the mediation or made no effort to actively engage in a mediation convened following such an order?
At present there are the costs penalties which can be imposed by an exercise of the court’s discretion on costs, with particular reference to CPR 44.5 (3). However the Master of the Rolls is against this save for in cases of “exceptional circumstances”, examples of which he did not offer. He is fearful of such orders setting off a new type of costs satellite litigation which he describes as being the bane of civil litigation.
If the costs sanction is to be but sparingly employed then what other sanction can be used and would it be appropriate? My view is that no other sanction would be appropriate. Firm encouragement to mediate is the best approach the court can take. Lord Phillips, Sir Anthony Clarke and Mr Justice Lightman are all of the view that although parties may be reluctant to try mediation if they are ordered to do so many will participate and a large number of those mediations will succeed. Mr Justice Lightman again:
“… by reason of the nature and impact on the parties of the mediation process parties who enter the mediation process unwillingly often can and do become infected with the conciliatory spirit and settle; ”
With appropriate training for district judges so that they can identify cases which are suitable for mediation the template is already there. It is the so called “Ungley Order” as cited with approval by Lord Justice Dyson in Halsey at paragraphs 32 and 33. He could see no reason why the order should not routinely be used “in general personal litigation, and perhaps other litigation too.” Neither can I, what is stopping us?
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