5 Senior Judges support Mediation

"most judges already make stenuous efforts to commend mediation."

Many senior judges support mediation. Lord Jackson said in his recent report “Most lawyers and judges already make strenuous efforts to commend mediation.” I thought I would gather together some of the things judges have said both in and out of court.

Lord Clarke, immediate past Master of the Rolls

Lord Clarke has taken many opportunities to encourage litigators to make mediation an integral part of their dispute resolution toolkit. Here is one example.

I put my cards on the table from the outset. In my opinion mediation has an extremely important role to play. Just as with mediation in general, it must be an integral part of our tools for the settlement of PI claims. I have, of course, made this very point before, but it bears repeating. In fact it is something that MRs, and ex-MRs, emphasize time and time again. Lord Woolf made the point in his two Access to Justice reports. He has repeated it consistently since. His most recent reiteration, as far as I’m aware, came at the start of October. At the London Litigation Solicitors’ Association he once more emphasised how the reforms which take his name were intended to ensure that litigation was truly a last resort. He once more emphasised the central importance of mediation. Lord Phillips has done the same. And even Lord Neuberger, in the short time he has been MR, pitched in with his support when he gave his perspective on the management of claims in the current climate.

Lord Neuberger, the current Master of the Rolls

A lot has of course been said about the importance of ADR in recent times by Lord Phillips, Lord Clarke, Sir Alan Ward, Sir Henry Brooke, and Sir Gavin Lightman. Its importance was, of course, underlined by Lord Woolf in his two Access to Justice reports. I am conscious that, like me, they became Judges before mediation had really come on the scene in this country. However, in many ways, that emphasises the value of mediation. I believe that there will be many cases where it will be right for parties and their representatives to consider ADR in its various forms. They should do so during the pre-action stage of litigation. They should consider it after proceedings have been issued. And they should continue to consider it while the claim progresses to judgment. It is often said that it is never too late to settle.

Equally, in some cases it may well never be too earlier to settle. A lot of course will depend on the nature of the claim. But in the field of commercial litigation I can see no good reason why parties should not routinely, in almost all cases, consider adjudication, arbitration or some form of mediation. I suspect that in many cases this is already second nature to many commercial lawyers; not least those faced with the type of commercial considerations I outlined earlier. For those to whom it isn’t yet second nature, it ought to be.

Sir Henry Brooke, former Lord Justice of Appeal

From the important case of Dunnett v Railtrack:

Mr Lord, when asked by the court why his clients were not willing to contemplate alternative dispute resolution, said that this would necessarily involve the payment of money, which his clients were not willing to contemplate, over and above what they had already offered. This appears to be a misunderstanding of the purpose of alternative dispute resolution. Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide. Occasions are known to the court in claims against the police, which can give rise to as much passion as a claim of this kind where a claimant’s precious horses are killed on a railway line, by which an apology from a very senior police officer is all that the claimant is really seeking and the money side of the matter falls away.

Lord Justice Ward

Made these observations in Egan v Motor Services (Bath) Ltd:

What I have found profoundly unsatisfactory, and made my views clear in the course of argument, is the fact that the parties have between them spent in the region of £100,000 arguing over a claim which is worth about £6,000. In the florid language of the argument, I regarded them, one or other, if not both, of them, as “completely cuckoo” to have engaged in such expensive litigation with so little at stake. At the time of writing this judgment I rightly do not know whether any, or if so what, attempts have been made to settle this case and the remarks that follow are of general application. I raise that matter again in this judgment to make the point, as firmly as I can, that this is a paradigm case which, if it could not have been settled by the parties themselves, customer and dealer, then it behoved both solicitors to take the firmest grip on the case from the first moment of instruction. That, I appreciate, may not always be easy, but perhaps a copy of this judgment can, at the first meeting, be handed to the client, bristling with righteous indignation, in this case the customer who has paid a small fortune for a motor car which does not meet his satisfaction, and the dealer anxious to preserve the reputation of his prestige product. “This case cries out for mediation”, should be the advice given to both the claimant and the defendant. Why? Because it is perfectly obvious what can happen. Feelings are running high, early positions are taken, positions become entrenched, the litigation bandwagon will roll on, experts are inevitably involved, and, before one knows it, there will be two/three day trial and even, heaven help them, an appeal. It is on the cards a wholly disproportionate sum, £100,000, will be to fight over a tiny claim, £6,000. And what benefit can mediation bring? It brings an air of reality to negotiations that, I accept, may well have taken place in this case, though, for obvious reasons, we have not sought to enquire further into that at this stage. Mediation can do more for the parties than negotiation…
…The cost of such a mediation would be paltry by comparison with the costs that would mount from the moment of the issue of the claim. In so many cases, and this is just another example of one, the best time to mediate is before the litigation begins. It is not a sign of weakness to suggest it. It is the hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation. The skills are now well developed. The results are astonishingly good. Try it more often.

Lord Justice Dyson

In another important case Halsey v Milton Keynes General NHS Trust:

Parties sometimes need to be encouraged by the court to embark on an ADR. The need for such encouragement should diminish in time if the virtue of ADR in suitable cases is demonstrated even more convincingly than it has been thus far. The value and importance of ADR have been established within a remarkably short time. All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR. But we reiterate that the court’s role is to encourage, not to compel. The form of encouragement may be robust.

Links to the above references: