UK: Politics of the Judiciary - A Poor Judgment on Mediation

Last Updated: 28 October 2004
Article by Sean Mc Ternan
  1. The Law is a vital, living institution that is essential to regulate citizens’ disputes.
  2. The law is a self-serving club, reactionary and sometimes disingenuous.


A Judge writes…

It is with a weary pen that I scribe a response to Michael Cook’s note1 of last week. It was, it appeared to me, a limp swipe at all that has happened over the last decade to make the dispute world more acceptable. Perhaps he was writing to a brief: it was for,I believe, the Law Society Conference.

Mediation is bad and the judges are waking up to it
- seemed to be the message.

It is a calamity that we no longer have 120,000 cases jamming the doors in the Strand.

In an attempt to exercise my Mediator instinct, I looked for common ground with the former judge. Well, I can agree with him that only some cases are suitable for mediation – and that compulsory mediation, if not a contradiction, is at least a severe distortion.

I want to separate the rights of judges and ex-judges from their needs to understand the roots of our idealogical differences – but I founder, and resuming my litigator mantle, I take issue with and rebut each and every other paragraph of the aforesaid Article.

I want to understand any submerged agenda. But, I struggle to find a point beyond a lame appeal for more "jobs for the boys". It is interesting that this article appears in the same week as the government report on the need for more diversity among the judging class.

The Golden Age of the Courts

I cannot believe anyone still hankers for the " good ol’ days " of litigation.

Did he mean the early ‘80s when I worked for a firm that nearly brought the High Court to a standstill with legitimate industrial deafness claims that the insurance industry had hitherto effectively stymied using "the system"? As I remember, there was soon clamouring for a statutory scheme to free up the judges’ beloved corridors of power.

Or perhaps he meant the eight-year-old libel actions I inherited when first representing media defendants in the mid-80s. Examples tumble from the memory.

Perhaps the appeal of litigation hosted by judges in Victorian palaces is more dans le vent, fuelled by raised claim-awareness. And reflected in Victoria Sponge being banned from village halls and school children being confined to sedentary recreation (beware the Conker!) for teacher’s fear of m’ learned friends. In short, does anyone, except the self-interested lawyer stand against Woolf and consequent reforms?

A Third Way

Let us stand back. The courts exist, in part, for when people cannot resolve their disputes. The recent case law creates2 sensible categories where litigants can refuse to mediate and press for assertion of legal rights. The CPR protocols demand at least consideration of the ADR route. It is cheaper and quicker in the large number of cases where it works. To suggest the contrary (as Cook does) is risible, and simply wrong.

In everything I have written on ADR3, I have included a "Devil’s Advocate" section. I believe the reasons for mediation should be questioned, but on a rational and disinterested basis.

I am an undisguised and unapologetic supporter of ADR, but only where the profile of the dispute suggests it may end lengthy and pointless litigation. Much litigation, in the commercial sector, assumes it’s own life and momentum. Personnel running the case changes over the years. No one "owns" the dispute any more. I have seen many examples. To cite one: a six-year-old landlord dispute. Sum in issue: £0 -20,000. Legal costs at date of mediation: £150,000 +. It settled that day.

Principles for Choice

So, I believe in mediation, but not as a panacea. I would subscribe to add least these provisos:

  • Only some disputes can mediate. The equilibrium is not known yet and depends on ADR awareness among advisers and clients( it seems unlikely that the quoted decline in cases (as cited by Cook) from 120,000 to 14,000 can be claimed by ADR alone).
  • Cases are best looked at sector by sector4.
  • As advisers, we need to examine legal and extra-legal factors that are common indicators of suitability.
  • We should know our mediators as well as [as solicitors] we know Counsel: both their individual strengths and weaknesses.

In last week’s article, Cook raised various questions as to the future of the dispute industry. Those points are fine for an airy debate in the Modern Law Review or similar periodical. The focus for those active in the dispute resolution industry should be on how we use (or choose not to use) this valuable tool of mediation in our disputes.

1 The Times, LAW, 12/10/04, at p.10.
2 Halsey v. Milton Keynes; Steel v. Joy.
3 See next footnotes.
4 For my area, Media, see my note on this site and E.L.R. [Aug. 2003]

© Sean Mc Ternan 2004. All rights reserved. Moral Rights asserted.

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