If you were waiting eagerly for the government’s response to the Settling Disputes in the County Court consultation paper then you’ll have to wait a while longer. It has been put back from the end of October date – no idea if the postponement is related to Mr Djanogly having his referral fee duties removed.
Anyway people have been lining up to say what a bad idea mandatory mediation would be. Lord Neuberger gave a vigorous defence of the right to resort to the courts in a speech last March. He said;
The only way the party in the right can get what he deserves, can vindicate his rights, is to go to court, and any civilized system should ensure that he is able to do so.
Mr Justice Ramsey speaking at the CIArb’s Mediation Symposium this month argued that introducing mandatory mediation would be unwise, stating that “the essence of mediation is that it should be voluntary“.
Speaking at the same event Professor Dame Hazel Genn says that the drive by the government towards mediation is diverting attention away from the cutbacks to the funding of the civil justice system. She is quoted as saying that “Mediation may be about access, but it is not about justice” and that although mediators facilitate settlement they do not provide access to justice.
Here’s what I think:
- I agree with Lord Neuberger – without the threat of the litigation stick what’s the point of settling any claim against you?
- Of course the government is only interested in mediation because it thinks promoting it will save them money.
- Yes the essence of mediation is that it is voluntary.
That’s why – much though I may benefit from it financially – I am against mandatory mediation. The crazy thing about the proposals for mediation information sessions and the like is that everything is already in place – solicitors are obliged to inform clients about ADR and judges are obliged to ensure it is used where appropriate. You don’t need new schemes, you need to use the existing ones.
My understanding is that it would only be mandatory for litigating parties to attempt mediation. Which means that they would NOT be denied their right to proceed to court if Mediation was unsuccessful and, obviously, if it was successful that would be an end to the matter.
Against this background Lord Neuburger’s point is wholly accepted and Dame Hazel Genn’s point has no relevance because,and setting aside the arguments on funding, mediation per se is certainly not a denial of justice. It is disingenuous for members of the judiciary and legal academics to use mediation as a stick to beat the government on funding issues in the name of justice. Ask any party who has successfully mediated a case whether they have been denied justice: I’m sure the answer will be ‘thank heavens its over for a fraction of the cost and guess what I’ve managed to get some useful add-ons which the court wouldn’t have had the power to order’. For heavens sake, Mediation is an adjunct to litigation but most worrying is that its benefits are viewed by some members of the legal profession as a threat to profit costs.
It seems to me that even the judiciary now fear that legally represented litigants wont reach the courtroom (nor,ironically the steps of the court) with adverse costs consequences for the profession as a whole. My view is that the Govt has no choice but to make Mediation mandatory with judicial discretion to waive the requirement in wholly unsuited cases with the onus upon the applicant to justify reasons for a waiver.
Why? because and despite that fact that a lawyer is under duty to advise clients about Mediation this simply is not happening opportunities are missed every day of the week. Time and again I am asked by people to explain Mediation and was recently asked: how can I make it happen as a way of sorting my litigation?! How can I get my own solicitor and the other side on board to even consider it? I have attended lengthy courses over the past three weeks and have taken every opportunity to take to lawyers about mediation and have been shocked by their lack of basic knowledge as to how it works in practice and their general ambivalence based upon ignorance.
The Jackson review has ensured that the advantageous funding arrangements of the past decade are over. Mediation is but one avenue for resolving disputes. When it works with the benefit of a trained professionals how is this a denial of justice? Surely it is a facilitator for justice as between the parties.
I have worked in the legal profession for many years and have helped to facilitate settlement of countless cases. More recently I heard members of the judiciary express concern at the current increase of litigants in person and the unholy prospect of more. The fact is that funding cuts are with us they are not going to go away. The govt is looking for alternatives and although its motives may be questionable, it is at least looking to ease the effects of its policies. Therefore, and instead of attacking Mediation, the judiciary and legal academics should lobby tirelessly and present hard evidence to the govt that their policies will have long term damaging effects for the public – whom we are here to serve; in their best interests not ours.