Alternative Dispute Resolution
If mediation shortens trials, reduces cost and produces an outcome (roughly) acceptable to the warring parties – how is that not justice? The Adjudication Romantics such as Hazel Genn and Mike Whitehouse say that not only is that NOT justice but it is a DENIAL of justice. That is a serious charge. They say that what should be promoted is not mediation, evaluation or arbitration but instead open justice in Courts to which the public is allowed free access with the key ingredient: public vindication of rights.
Is the vast expense of public vindication, justice? Are the delays in the under-resourced and disappearing courts, justice? The Adjudication Romantics say that public vindication is worth every moment of risk, every penny of cost and every potential ruination. Is that justice?
What is justice? It cannot be easily defined. Yet when you see it, you know it.
What I want to consider is what makes a just system of law. Why does this matter?
This matters because in Autumn 2019 the Civil Procedure Rules Committee is likely to implement Recommendation 20 of the Civil Justice Council’s ADR Working Party’s Final Report. That change will lead to the amendment of Part 3 of the Civil Procedure Rules, the Practice Direction concerning pre-action conduct and the Pre-Action Protocols so that ADR becomes compulsory in every case that is not otherwise settled. Following that ADR (chiefly mediation) will have to be engaged upon in every claim before the civil courts. That will affect almost 2 million claims issued every year.
A colossal spike in the number of mediations will be seen. Whether the mediation sector is ready for this is another matter. Some law firms are gearing up for the spike but most are not. Is the technological infrastructure in place to manage the spike? These are serious questions but none more serious than whether mediation is justice. It is a question that strikes right to the heart of what the Law is about.
Some say mediation is just about the deal. Yet if that is so why does mediation exist? Why will Joint Settlement Meetings or hasty negotiation in hushed corridors not suffice?
As Tony Allen observes – as mediator he runs the process. A single person is in charge of a process which begins with a formal signed agreement leading to agreement via a bundle of evidence, expert reports, witness statements with written and oral submissions. A process as strikingly different to parties huddled over papers in a corridor as chalk to cheese. The Huddle is not Justice it is just about settlement. Mediation is Justice because it involves a process that is intrinsically a just or fair one with rules agreed by all parties leading thereby to a Just outcome.
The Adjudication Romantics often drag poor Bentham out of his cupboard at UCL to support the notion that private justice is an affront to public justice. For the opportunity of public vindication Bentham insisted upon Courts being open to the public. However he also railed against the expense and delays of the courts and lawyers, a point overlooked by the Adjudication Romantics. There really is nothing new under the Sun.
The killer Bentham point is, of course, that the greatest happiness of the greatest number is the measure of right and wrong (“the fundamental axiom”). The Adjudication Romantics have nothing to say about that. The Romantics in their writings usually omit any reference to the expense of litigation and the fundamental axiom.
Of course the fundamental axiom applies and trumps whatever Genn, Whitehouse and others may argue. Cases are being settled up and down the country every day and in vastly increased numbers from this Autumn onwards. Why do citizens allow this to happen to their claims for compensation?
They opt for private resolution against public vindication because they choose the greater certainty of a private outcome against the public certainty of expense, delay and risk of ruination that the Courts offer.
Perhaps this question and the furore it generates is all a sideshow – what the citizen wants is resolution, not vindication. If resolution is an imperfect justice but one which avoids delay, saves cost and shields from ruin – so much the better.
TONY N GUISE
Tony is Director of DisputesEfiling.com Limited the provider of a bespoke platform for ADR schemes and a Past President of the London Solicitors Litigation Association.