UK: Media and Mediation: Libel

My view is that the level of awareness among clients of this alternative is very low and effective awareness amongst practitioners is limited. While they may be aware of all CPR requirements concerning ADR, there may be room to improve the practitioners perception of it and their ability to more clearly see where it could fit into the advice they give to a client and their management of a particular type of case.

I find that the attitude of many lawyers, even those who have looked into mediation, is that "it is no different to negotiation" and so they " do not need it". My response is that I would agree that cases might settle anyway - but that mediation may achieve it sooner, more economically and on terms that all parties are happy with.

It is not my position that mediation is a panacea that will bring together parties in every situation. I do believe it is possible to develop a more structured approach to the stereotypical situations which we encounter in libel and consider indicators which, when appearing together, suggest that mediation should be advanced as a strong alternative.

So, if mediation will work if x, y, and z feature in a particular dispute, what are these variables in libel?

What I wish to do here is to look at one or two contenders and present them against a range of typical libel case scenarios.

1 Time factors. From a defendant point of view, it is sometimes necessary to look into a justification defence even where it is not obviously available at the time the complaint is received. In other cases, and error may be so blatant that no further research is necessary.

2 Nature of Defendant. The focus of decision-making will vary. With a newspaper it is often concentrated with an editor who can be approached to issue instructions and reach decisions very quickly. In other organisations, the structure may be more diffuse and responsibility will move between various executives. In these latter cases, there may be increased value in mediation, as it provides the focus that is otherwise very difficult for the advising lawyer to orchestrate.

This is only offered as a simple structure - any case could begin in one category and move to another.

In libel, this label may most often be attributed to the claimant -- and in extreme cases they may become vexatious. In mediation, it is more likely to be the defendant who will not go to mediation or run risks of being penalised in costs for not dealing with it properly. In either case, prospects in mediation will be limited, regardless of the two variables we are looking at.

This is typified by a defendant who has conducted a detailed investigation and has no intention of compromising with the claimant. Issues of time for investigation or the focus of decision-making may be predetermined and mediation could be an irrelevance.

In a variation of the above, as the litigation proceeds, gaps appear in one of the defences and the litigation risk increases. This then becomes a case where mediation might find a compromise more quickly than the "bunker" mentality of positional bargaining. This is particularly so when the defence has set out its case in a strong, unequivocal way and may find it difficult to draw back and explore all of the options in settlement.

The label covers the many cases where no particular principle is in issue, there is some material for a defence but no desire on the part of the defendants to do anything other than extricate themselves from proceedings. These are eminently suitable to mediation. It is also the type of case where client focus may otherwise be lacking.

Either of the last two cases can fall into this category -- where one-party (usually the defendant) decides that, whatever principle they began with, it is now swamped by commercial considerations and a pragmatic take is required.

My recollection here is of cases allowed to run for several years, where the claimant has not had to incur significant costs or take particular steps and the defence has watched its evidence "grow old" as costs escalate. This particular kind of case should be disappearing under the current procedural reforms.

These may be able to be considered into groups:

(a) An error that is so obviously wrong that an early apology is necessary in mitigation and negotiation of a fuller settlement then follows.

(b) An error where there is a prime facie defence and further investigation is needed.

Both cases are suitable for mediation and only the time factor distinguishes them. Even in (b) the assessment of whether a defence is available should be made swiftly.

As we proceed through these types we see the likelihood of settlement increases and so do the prospects in mediation. My point is that this should not be seen as a point that devalues mediation. It should be a mechanism to identify when mediation may be the quicker and cheaper route. Beyond that, when the two variables I have chosen are in play strongly, mediation is correspondingly a stronger contender.

I am still finding that quite experienced libel lawyers do not spend a great deal of time dealing with the mediation consideration.

One documented account of mediation in libel comes from the CEDR Civil Justice Audit of 2000 (p. 31).

That was a libel arising from live radio broadcasting and the main allegation against the claimant was poor parenting. The defendant's lawyer said that negotiations had taken place -- but failed. The mediation succeeded "just short of trial".

It is an example where I would speculate that coordinating the broadcasters response may not have been that easy and one where, in retrospect, the attempted mediation could have been successful much earlier in the process. It is impossible to say whether it could have succeeded before action -- as the protocol may envisage -- but it is the type of case where careful analysis of the options early must surely be of benefit to all concerned.

Although I have not gathered any empirical evidence ( but may attempt to do so in the future), I was interested to find that one senior mediator had only had two defamation claims in the last five years to work with and at least some suggestion from experienced practitioners that they are not that persuaded by the benefits of mediation.

Drawing parallels between litigation and the smoky image of a gambling den may not be particularly original, but it is still apposite and was certainly in the mind of one judge in a case that came before the courts recently. So, with images of Cézanne oil paintings to the fore, I would like to look at this decision which I feel can be used to illustrate some of my points. It may be seen as a case which lay between the penultimate and last of my case types.

It was the case of John Cleese v. Peter Clarke, Associated Newspapers Limited (2003).

It was resolved under the offer of amends procedure. It appears that the defendant took a little time to assess their position before making the offer. On the accounts that I have seen, I have no indication of whether mediation was considered before action was instigated, afterwards or at all. As reported, the offer of amends procedure required a court hearing because the claimant felt that the level of offer was not sufficient.

In those terms, it can be seen as a classic "gap" case, which is one of the most amenable to mediated settlement.

Looking at some of the practical suggestions that Mr. Justice Eady put forward for future cases, each of them can be interpreted to support my argument that there is a significant difference between negotiated settlement and mediation – with mediation offering definite advantages.

Having conducted this type of meeting in large libel actions, I am aware of their limitations and the difficulty (in my case) of being both the defence lawyer and chairing the meeting. I recall more meetings that resulted in the settlement than the parties walking away, but in retrospect I would have welcomed the structure of the mediation and neutrality of a good mediator.

This will be recognised as an essential part of the mediation process -- where the essence is to go beyond a simple "rights" analysis and look towards a "needs" analysis. In my experience, the mediation approach is broader and operates on more value levels than the average face-to-face negotiation.

This is essential and libel is one of the sectors where the value of "venting emotion" moves from being a cliché to a reality. It is often a necessary precursor to realistic mediation.

Mr Justice Eady went on to comment that solicitors’ letters were often terribly stilted and full of endless point scoring of the "we are surprised to note" variety. Although too often guilty as charged, I must agree and my experience is, again, that point scoring and posturing can sometimes come off the paper and spread into negotiations.

While I do not wish to do my fellow solicitors a disservice, we can probably all recognise cases where the expected macho litigation style may not necessary further a client's interests. I would go a step further. In my experience of mediation, it is often only when the lawyers are separated from their clients that important steps towards a settlement can be made. That is not to deny the lawyers role, but to reflect Mr. Justice Eady's point – sometimes an adversarial stand is counter-productive.

The carrots are fairly obvious -- saving time and money. The sticks are more contentious. I will not review again the sequence of cases that have shown how a party who is unwilling to mediate or unreasonable in their refusal to do so end up picking up legal bills. In the particular case of libel, it is worth remembering that in the offer and amends procedure, the court can not intervene to change the terms of an apology, but it can adjust damages upwards if it concludes that the apology offered was not adequate. This is what appears to have happened in the Cleese case.

The offer of amends procedure is necessarily a "blind" process where the defendant puts an offer into play and hopes for the best. I would suggest that the more flexible thought processes of mediation would often help in avoiding extra damages and the costs of a court hearing, which are incurred when the gamble does not pay off for the defendant.

Unsurprisingly, my view is that mediation is underused in libel as I have argued previously it is underused in format rights disputes. I believe that, as a sector, awareness of ADR is not fully developed yet and that these are two of the subdivisions of common disputes where those who favour and support mediation should be working harder to bring it to the attention of their colleagues and clients.

© Sean Mc Ternan 2003