This was the view of Sir Anthony Clarke, the Master of the Rolls. He was speaking in London in January at a debate on mediation in personal injury claims hosted by the Federation of Insurance Lawyers. Given the “ludicrously high” costs of litigation it is madness to not try and negotiate a settlement. He repeated a view he has expressed before that education is required for judges and lawyers to ensure that mediation becomes an integral part of the litigation process.Sir Anthony believes that case management judges’ ability to assess cases to see if they are suitable for referral to mediation is hampered by the fact that parties so often attend hearings by telephone.
Judges have the power to order mediation.
The Master of the Rolls expressed his view that case management judges already have the power to order parties to mediate under the CPR. His preferred approach is for the court and the parties to properly consider if mediation is appropriate at an early stage of proceedings and refer suitable cases. He sited with approval the so called “Ungley Order” as discussed by Lord Dyson in Halsey v Milton Keynes General NHS Trust.
He is against costs sanctions being applied to parties who unreasonably refuse to mediate – which is the current situation – see Dunnett v Railtrack PLC. Sir Anthony does not want to encourage a new wave of costs satellite litigation.
For a more detailed discussion of this issue see Should the court order Mediation?
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