… is one of only two* opening lines from novels that I regularly get at the pub quiz up the Woodies on a Sunday. Lord Clarke, the Master of the Rolls, adapted it in his speech to Littleton Chambers Annual Mediation Evening on 8th June and said
Thus, as I see it, mediation too is an integral part of litigation, and not simply ancillary to it. Many would say, echoing Jane Austen’s famous comment about single men and large fortunes, that it is, or at least should be, a truth universally known that mediation is and must play a fundamental and integral role in our litigation culture.
Lord Clarke referred to his speech at the Civil Mediation Council conference last year (the Birmingham speech) which I have written about before in separate posts. He summarised it as follows:
1) Mediation is a good thing because it helps to engender settlement and “only a fool” does not want to settle.
2) The courts should encourage it.
3) Mediation should not be permitted to give rise to satellite litigation because satellite litigation is one of the evils of civil litigation, as the years of wasted time and cost involved in applications to strike out for want of prosecution show.
4) The courts may well have the power under the CPR as they stand to direct mediation.
5) The reason why mediation is not used as much as it might be (if it is not) is lack of education. What is required is education of judges, lawyers (both solicitors and barristers) and, perhaps most important, repeat clients such as liability underwriters. Put another way: education, education, education.
He then turned his attention to the views expressed by Dame Hazel Genn in the Hamlyn lecture last year. He says she expressed a fear that the civil justice system was being traduced by the promotion of ADR and mediation.He believes her views should be considered carefully once the lectures are published. However in his opinion the existence and role of the courts is not threatened by ADR in general or mediation in particular. Mediation is an important adjunct to the role of the courts – an important supplement and should be made available to all (my emphasis).
Mediation was not made a compulsory element of the litigation process following the Woolf reforms and has never been seen as a panacea or replacement of the citizens’ right to determination by an independent judiciary. What came out of the Woolf review and the Heilbron/Hodge report commissioned jointly by The Law Society and The Bar Council before it were
recommendations as to ADR (and thus mediation) were by way of providing options for litigants, alternatives to formal litigation, while rendering the formal litigation process more accessible and efficient.
Finally there can now be no doubt that the Master of the Rolls, no less, believes the courts have the powers to go beyond even an Ungley Order and actually order parties to mediate.
First of all, the CPR, through the overriding objective and the general case management power set out in CPR 1.3(e) must manage cases by encouraging parties to use ADR and facilitating its use if such is appropriate. Equally, CPR 3(2)(m) provides the court with the general case management power take any other step or make any other order in order to further the overriding objective and properly manage individual cases. Without breaching my self-denying ordinance not to refer to Halsey again this evening, I cannot but think that this provides the power, in an appropriate case and consistently with the duty imposed on the court under CPR 1.3(e), to direct parties to enter into mediation or ADR procedures in appropriate cases. In considering whether to exercise these powers, it seems to me, that the court will have to consider a number of questions. So will the parties and their advisors because of the duty imposed by CPR 1.3 to assist the court to further the overriding objective. Thus both the court and the parties are under a duty to consider whether it is proportionate to pursue their claim through the formal litigation process or whether a mediated settlement might a just way of dealing with their case. Equally, the question will have to be asked whether it is proportionate to other litigants for their particular claim, to be pursued through formal litigation, or whether it would improve access to justice for other litigants if they mediated their case: see CPR 1.1(2)(e).
Lawyers – are you making this integral feature of the litigation process available to your clients?
* “It was the best of times, it was the worst of times…” is the other one.
Thanks to Current Awareness from the Inner Temple Library for reporting this speech.
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