KEYNOTE SPEECH FOR CIARB
LJ Briggs
SEPTEMBER 2016
MEDIATION AND THE CIVIL COURTS
1. Thank you for inviting me again. I was to have given the keynote speech at the 2014
symposium about online mediation, but a cycle crash the week before put paid to that.
Two weeks ago I was kayaking towards a waterfall in New Zealand, but a desire not to
let you down twice kept me away from the really risky bit.
2. Nonetheless I do feel a bit like a fish out of water at this symposium about mediation
and politics. I am not a mediator, although married to one, and as a judge I am
programmed to keep well out of politics. Certainly out of public comment on Brexit.
But I am told that you (or some of you at least) may find it helpful to start the day with
an update on where mediation has got to in the context of civil disputes in (or on their
way to) the courts, and where it might be going to in the next few years.
3. I speak as someone with no qualifications as a mediator, nor any aptitude for
developing the special skills which good mediators need. My direct experience of
mediation is limited to attending about three as leading counsel, none of which settled,
probably due to my incurably adversarial behaviour on the day. But I regard mediators
with limitless admiration for what they achieve, a large measure of incomprehension at
the magic they use to achieve their results, and a determination to do what I can to see
that mediation continues its inexorable course to being the primary rather than merely
alternative means for the resolution of civil disputes.
4. Leaving aside pillow talk, I do lay claim to some authority about where civil mediation
has reached, and where it may be going. First, I looked quite closely at the vexed issue
of mediation privilege, in two articles in 2008. Secondly, its role in connection with
chancery disputes came under my microscope in 2013 when I carried out the Chancery
Modernisation Review. Thirdly, I was the lead judge in the Court of Appeal in PGF II v
OMFS Company 1 Ltd [2013] EWCA Civ 1288, in which the court was required to
scrutinise detailed evidence and submissions about the effectiveness of civil mediation
in order to decide just how far to go in imposing sanctions for a party’s refusal to engage
with an invitation to mediate. This was the first (and remains the most recent) in depth
look at mediation by the Court of Appeal since the leading case of Halsey v Milton
Keynes General NHS Trust [2004] 1WLR 3002. Fourthly, and most recently, mediation
has been an important subject for study and consultation during my recently completed
Civil Courts Structure Review (“CCSR”).
5. In my interim report for the CCSR in December 2015 (at ch.2.86-90) I said that ADR
generally had reached a relatively steady state in the civil context, having a semidetached relationship with the courts, being generally encouraged by the judges, but
usually by no more vigorous steps than making available a stay of proceedings to give
the parties a breathing space in the preparation for war, and by imposing costs
sanctions on the recalcitrant. ADR is, as we all know, not a synonym for mediation,
but by far the largest role within ADR has thus far been played by mediation rather
than, for example, preliminary neutral evaluation. I leave arbitration out of account for
this purpose. For most purposes I view it as private litigation rather than ADR. I will
also by-pass adjudication, while acknowledging the remarkable progress which the
process has achieved for example in construction disputes.
6. More detailed research and consultation during stage 2 of the review led me to the
following conclusions, set out in my Final Report, published in July:
a. Mediation was performing a broadly satisfactory role at the higher value end of
the civil litigation spectrum, above about £200,000. Few high value cases now
come to trial without one (or sometimes more) attempts at mediation, and in
many fields only a very small minority therefore get to trial at all.
b. Mediation and judicial ENE was showing signs of success for resolving low
value claims up to £10,000, but only patchily, for reasons to which I will return.
c.
There was a real gap in mediation (or ADR) penetration in relation to the claims
in between (£10,000 to £200,000) and particularly in relation to personal
injuries (including clinical negligence) cases.
d. Recent sharp rises in court issue fees had led to a rise in pre-issue mediation,
but not necessarily to a rise in the proportion of cases actually resolved at
mediation. Frequently parties now prepare draft pleadings, witness statements
and experts reports without issuing and paying the fee, so that the pre-issue
mediation still happens at much the same stage in the detailed development
of the dispute and its preparation for a trial.
7. Much more central to my review was the conclusion that the main (I said shocking)
weakness of our civil courts was that the combined effect of disproportionate costs
(including costs risk) against the value at stake and the lawyerish culture of our courts
meant that they simply did not provide real access to justice for the ordinary litigant or
small business with a dispute of modest value, unless they fell into one of the residual
classes of those with legal aid, legal insurance, pro bono help or a meritorious personal
injuries claim for which they could get a CFA and protection from costs risk by QOCS.
In terms of value at risk, consultees put the line below which litigation with a typical
legal retainer was disproportionately expensive anywhere between £10,000 and over
£250,000. Most put it above £50,000. Moves towards a fixed recoverable costs
regime, and the other recommendations in the Jackson Report, such as costs
budgeting and management, had not solved the problem, even if they had been large
strides in the right direction. Nor did mediation provide a ready-made solution, not least
because most ordinary people need a lawyer to tell them about the availability and
advantages of mediation, and a full mediation, with counsel and solicitors present, is
itself expensive. We are not yet anywhere near to becoming a society in which the
culturally normal reaction to becoming involved in a dispute is to mediate. Public legal
education in this country lags well behind what is provided in many of our near and
distant neighbours.
8. This lack of access to justice was a conclusion I reached (provisionally) in my interim
report, but it was widely reinforced in public consultation thereafter. When I asked,
routinely at numerous meetings, whether any lawyer present would recommend to an
unqualified friend litigating in the civil courts (otherwise than in relation to personal
injuries) about a dispute with a value at risk of £25,000, I received not a single
affirmative answer.
9. My main recommendation for dealing with this weakness (as most of you will now
probably know) is the development of a new LIP focussed court, currently called the
Online Court. This is a name inherited from its progenitor Professor Richard Susskind,
(in his committee’s report to the Civil Justice Council last year), but it doesn’t really
capture its essence, not least because the HMCTS reform programme, if it continues
to be backed by Government, should ensure that all our civil courts are accessible
online, and paperless, by 2020 or thereabouts. A very recent statement by the new
Lord Chancellor suggests that the reform programme will continue to have Government
backing.
10. If it comes to pass this new court will have major implications for the relationship
between ADR generally (including mediation in particular), and the civil courts. Let me
first describe its bare essentials, as recommended in my Final Report:
a. It will be designed from start to finish to be accessible to litigants with no, or
minimal, help from lawyers. But it will encourage litigants to get affordable
advice about the merits of their case before they go to court, on an unbundled
or direct access basis, rather than by means of a full retainer. And litigants
with lawyers will be just as welcome. Many cases will have represented parties
on at least one side.
b. It will have completely new short and simple rules, made by a rule committee
which will include those who deal regularly with LIPs, rather than dominated
by judges and lawyers, as at present.
c.
It will be the forum for the resolution of relatively straightforward civil disputes
up to £25,000 value at risk as the first steady state ambition, with a permeable
membrane to enable cases of complexity or public importance to be passed
up to a higher court, where appropriate.
d. Its procedure will have three main stages. The first will happen online (for both
sides, unlike the present MCOL and PCOL semi-online procedures). Parties
will be triaged by automated software to explain their disputes in a way which
enables the court to get to grips with the essentials, and to upload their key
documents and evidence.
e. The second, resolution, stage will be led by a court officer called a Case Officer
or Case Lawyer, legally qualified, not a judge, but trained and closely
supervised by judges. Their job will be to study the online product generated
by stage 1, and to identify the most appropriate means for resolution of the
dispute. By resolution I mean resolution by the parties by what we currently
call ADR rather than determination by the court. This may be a short telephone
or online mediation (for a simple, low value dispute), judicial ENE by a District
Judge, an after-hours modest-cost private mediation in a court centre (such as
used to be offered at Central London County Court and elsewhere a few years
ago) or even a full all day private mediation in a higher value or difficult and
emotional case. Or it could be one of the newly emerging forms of ODR,
whether online mediation or automated bidding processes, with no 3rd party
human intervention.
f.
If resolution is not achieved, the Case officer would case manage the case to
stage 3, namely determination by a District Judge. This determination might
be by telephone, by video, by a traditional face to face trial at a location suited
to the parties, or even on the documents, as appropriate. Parties dissatisfied
by the Case Lawyer’s case management decision would have a right to have
it reconsidered by a judge.
g. There would by an appeal from the judge’s determination in stage 3 to the
county court, heard by a Circuit Judge, with a second appeal (limited to
important points of principle or practice) to the Court of Appeal.
11. How does all this affect mediation? First and foremost, it brings what we still call ADR
into the mainstream of civil dispute resolution, by becoming an essential second stage
in the court’s process. It makes resolution by the parties a culturally and actually
normal part of civil dispute resolution, rather than something alternative to the
mainstream. In short, it seeks to take the ‘A’ out of ADR. That is why I would like to
see the new court called a Resolution or Solutions Court, following the lead set by
British Columbia. I do not mean that we plan to make mediation or other resolution
processes compulsory. Parties may still say no, but the cultural norm will be to take
part. Going to court will be seen as a process aimed at resolution, not just, or even
primarily, at trial.
12. Secondly it will bring the court service into much closer partnership than at present with
the ADR or resolution community in providing a suitable resolution process as the
primary route to the solution of civil disputes. Some Case Lawyers will themselves be
trained mediators. Judges will do more ENE. The court centres will be encouraged
(as they used to) to make space available for affordable face to face mediations. Above
all the court will play a leading role in directing the parties towards the most suitable
resolution process for their dispute.
13. Thirdly it will build on valuable but under-used precedents. The Small Claims Track in
the (now unified) County Court (up to £10,000) offers a free telephone mediation
service, with a settlement rate in the high 60%, but which (for mixed reasons) only
services about 40% of the demand. All the mediators are civil servants. In some areas
District Judges provide as a matter of routine a highly effective judicial ENE service for
small claims, which resolves up to 75% of the entire case-load. This follows the
excellent lead given by the Financial Dispute Resolution process in the Family Court.
For several years local courts and private mediators cooperated in providing after hours
affordable mediations for County Court cases, until it fell foul of the closure of the
National Mediation Helpline. But none of these excellent initiatives, some alas shortlived, have really crossed the Rubicon of making resolution rather than determination
the culturally normal way of settling civil disputes.
14. Of course, the resolution stage in this new court will be accessible only after issue of
court proceedings. But it is not meant to replace or discourage pre-issue dispute
resolution. The opening pages of the online portal for this court, like all the civil courts
in the future once digitised, will emphasise the alternatives to the issue of proceedings,
and direct would-be litigants to appropriate providers of ADR. Proceedings will be
described as a last resort, and issue fees will no doubt provide another incentive to
seeking resolution elsewhere first.
Again, the recent ministerial statement firmly
supports that approach.
15. Many of you may be thinking that court reform of proceedings about claims for £25,000
or less have little relevance to your professional lives. In one sense that may be
correct. The Reform Programme is proceeding on the basis that digitisation of the civil
courts above the £25,000 line will be essentially along existing procedural lines, with
no similar incorporation of resolution as part of the mainstream. But I would suggest
that there are three reasons why the incorporation of resolution into the mainstream of
the proposed new court may have more relevance than you may at first think. The first
is that claims under £25,000 make up the overwhelming majority of civil claims by
number. Thus a fundamental change in litigation culture at that level will affect far more
of the public than a similar change in relation to higher value cases. Secondly, the new
court is intended to make available a means of vindicating the civil rights of a large
silent community for whom there simply is not real access to civil justice at all, and who
have no experience of our current winner-takes-all system of adversarial justice.
Thirdly, if this new court takes off, and the public gets to like resolving their civil disputes
in this less adversarial, solutions based way, who knows to what level of claim it may
eventually be extended upwards? Make no mistake, this is a wholly new way of dealing
with civil disputes, with no limits on its long-term ambitions.
16. Let me now return to mediation and politics. From the perspective of a litigation lawyer,
for whom mediation was unheard of at the beginning of my career, two words serve to
encapsulate why I think mediation is different, and special. They are ‘empowerment’
and ‘sharing’. Empowerment needs little amplification. It means giving the parties the
power to resolve their dispute, rather than leaving it to be determined by a judge.
Determination empowers no-one, but resolution empowers both sides.
17. Sharing is a bit more elusive. The effect of judicial determination of a dispute usually
is that someone has won and someone has lost. Often both have lost, compared to
where they started, because of the financial and other costs. But someone will have
had their rights vindicated, in full, as far as the court can do that. A resolution by
mediation by contrast usually means that each side takes something away. Property
in dispute may be shared.
There may be an agreed sharing of the large but
unpredictable risks inherent in proceeding all the way to trial. Losses may be shared
by agreed contribution. A tax-advantageous settlement in which both sides are winners
may be achieved by mediated agreement which no judge could deliver at trial. Parties
may be able to continue to share the benefits of doing business together in the future,
which a hostile trial might have closed off. Parties to a family dispute may be able to
share their grief about the loss of a family member under the shadow of mediation
confidentiality, which would never have been possible in court.
18. In these respects mediation is widely separated from litigation as we have traditionally
known it, and bringing these benefits of mediation into a historically adversarial court
culture has been no quick or easy thing. It may take many more years before its effects
radically change our cultural approach to disputes, as I hope they will.
19. Politics, or at least good politics, is also, or ought to be, about empowerment and
sharing. By this I mean politics in its broadest sense, national and local, rather than
just party politics, which in this country is also adversarial to a greater extent than in
many neighbouring countries. Good politics should make all citizens, and certainly all
minorities, feel empowered to play a real part in their governance. That is what
democracy is all about.
20. Good politics is also all about sharing, of resources, of responsibilities, of good fortune
and misfortune, of both advantage and disadvantage.
So from my uneducated
perspective, politics and mediation ought to have a lot in common, more than mediation
and litigation as we have traditionally known it.
21. Finally (and I would say this because I’m a judge) both mediation and politics share the
need to be subject to the rule of law. Politics is regulated by the dictates of public law.
Mediation is governed by the principles of law and equity which regulate parties’
dealings, so that there will always be remedies for mediated agreements tainted by
fraud, by misrepresentation, by mistake, by duress, undue influence and other forms
of equitable wrong. Furthermore the rule of law is also vital to secure the enforcement
of mediated agreements.
22. Finally, mediation must also produce results which are broadly fair, and which therefore
bear some relationship to the parties’ underlying rights and duties, rather than merely
a reflection of the parties’ different power, wealth and appetite for risk. For this purpose
the availability of a reasonably speedy and affordable recourse to court as a fall-back
to mediation remains a vital part of the foundations of mediation as an attractive and
publicly acceptable means of dispute resolution. A party who is made a derisory offer
by their wealthier, more powerful or less risk-averse opponent must be able to say:
“see you in court”.