Lord Falconer of
Thoroton, Secretary of State, Department for Constitutional Affairs
(formerly the Lord Chancellors Department) officially opened the
Cardiff Court Mediation Scheme on 28 November 2003. He spoke in
detail of the role of courts in the current ADR landscape. Mediation
saves costs. Mediation produces results beyond those that a Court
can order. Mediation is a less stressful environment than the
adversarial court room. Lord Falconer praised all those involved
in the establishment of this scheme, which includes many of the
south Wales Courts and will be expanded to cover all Courts in
Wales.
What message does this send out? The message is clear. The
Government, Judiciary and Court Service fully embrace the concept
of mediation and are integrating it into the litigation environment.
For many years lawyers, barristers and Judges have all undervalued
the importance and usefulness of mediation. Many have argued
that ADR stands for nothing more than the acronym “alarming
drop in revenue”. Others argue that it won’t reduce
listing timetables and that it adds an additional and unnecessary
layer of costs. It has always been easy for legal practitioners
to seek loopholes to avoid mediation. The reality is that these
loopholes are being tightened and that it is time mediation
is given due acknowledgement as key tool available for the legal
profession.
The Cardiff Court Mediation Scheme is the latest Court to launch
a fully operational mediation facility. Many who read this article
will know that the first fully operational Court annexed mediation
facility was Central London and which scheme still operates
today. Many other Courts around the country have set up their
own schemes and these include Birmingham, Exeter, Guildford,
Manchester and Leeds. Each scheme has its own costing structure
and modus operandi. With the exception of Leeds, the common
element in all the schemes is that the mediators who actually
undertake the work are affiliated with one or more of the major
ADR providers. ADR Group, ADR Chambers, Chartered Institute
of Arbitrators and CEDR support the schemes and provide accredited
mediators when contacted by the Court.
The original notion of the Court schemes was intended for the
resolution of fast and multi-track cases, but certain Courts
have developed a very efficient small claimses will be required to give mediation serious consideration
at some stage prior to the matter being heard. Those who simply
tick the allocation questionnaire and advise their client “…
this case is just not suitable for mediation” or “insufficient
information is available” may well find the Court taking
a different view. Judges will be looking very closely at all
cases stayed for mediation and will in question those parties
who make no attempt to settle their dispute through mediation.
We are all too familiar with the cases of Dunnet v Railtrack
and Hurst v Leeming to name but a few where parties how have
not mediated have been penalised with costs.
The second reason is that these schemes will enable the Judges
to get a much better understanding of mediation with an opportunity
to view results first hand. Although the veil of privilege that
attaches to the mediation process will prevent any third party
(including the trial judge) for viewing what actually took place
during the mediation, Judges will be able to know when mediation
has been dismissed out of hand. Some practitioners argue that
these schemes impinge on basic Human Rights and access to justice.
The point of this article is not to debate that particular issue
save as to say that the Judges will be monitoring with much
greater scrutiny the conduct of parties in lead up to any mediation
or any unreasonable refusal to engage in the process.
The Government are actually tempted
to go one step further and will pilot in at least one court an
“opt-out” mediation scheme. News of this scheme was
announced by David Lammy MP Parliamentary Under-Secretary for
the Department of Constitutional Affairs at the recent ADR Group
annual date held in London on 29 October 2003.
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In acknowledgement
of the fact that there is little empirical evidence to support whether
a mandatory form of ADR will work in the UK, the Government are
seeking to pilot this scheme to see if there is any merit in it
being adopted more widely.
It is understood that the new opt-out scheme
will initially apply to certain types of case where lit this is
that many parties don’t mediate for fear or ignorance of the
process or because they believe they will get a better outcome by
going all the way to trial. By having parties tracked on to mediation,
more cases will progress to mediation and if existing settlements
figures are anything to go by, then many more cases will settle
without the need for a full trial. The benefits to the Treasury
are obvious, but whether such a scheme has the long term interests
of mediation at heart awaits to be seem.
The Minister also announced that 40 Court
mediation schemes will be in operation by April 2004. This suggests
a clear change in government strategy and illustrates how the Courts
are approaching mediation. With more courts and judges endorsing
the notion of mediation there is likely to be a more widespread
take up in mediation activity.
In addition to the county Courts embracing
mediation, the Court of Appeal has also set up a very efficient
mediation scheme. Accredited mediators from the main ADR organisations
are appointed on cases that have been stayed by the Appeal Judges
or where the parties have voluntarily agreed to mediate. Some argue
that these cases are not suitable for mediation as one of the parties
has already had their “rights” confirmed or adjudicated
upon. The reality is that even cases that have come this far through
the costly corridors of litigation are able to settle by mediation.
The Courts are having a significant impact
The final and most supportive evidence of
the impact the Courts are having on mediation is in the raft of
recent case authorities. Few can dispute the effect these cases
have had on the conduct of litigation. The recent case of Corenso
provides further guidance on the what the Court may consider reasonable
grounds for refusing to mediate. Building on the judgements of Hurst
v Leeming and Societe Internationale de Telecommunications Aeronauticques
SC v The Wyatt Co, the Court in Corenso were of the view that so
long as a party shows a genuine and constructive willingness to
resolve a claim before trial, whether by without prejudice correspondence
or meetings, by mediation, or by some other form of ADR, it will
have complied with its obligations and should not be penalised in
costs.
The litigation landscape is changing. The
Courts are going to be paying closer attention to the reasons behind
a party’s willingness or reluctance to engage in mediation.
Those who simply pay lip-service to the mediation process do so
at the risk of such behaviour being viewed unfavourably by the Court.
The increased awareness now being placed on mediation should not
be viewed negatively. To the contrary, the heightened profile of
mediation should result in a wider understanding of the process
with the more cases settling through mediation or some other form
of ADR. The facts of each case will be taken into consideration
in establishing whether the parties had a genuine and constructive
willingness to settle the claim before trial.
Tel: 0117 946 1780
Fax 0117 946 7181
Email:michaellind@adrgroup.co.uk
Website:www.adrgroup.co.uk
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