Mediation – not about just settlement but just about settlement

Professor Dame Hazel Genn QC has launched a stinging attack on the downgrading of civil justice and the promotion of mediation at the expense of the civil litigation system. ADR is a worthy parallel remedy but government promoted it more as a means of saving money than as an extension of access to justice. The courts system has been run down and some of the rules changes have succeeded only in driving litigants out of the system

The original and primary purpose of this Commentary is to draw attention to the formal obligations of parties and judges in respect of disclosure under the Civil Procedure Rules, to the problems it causes, and to the solutions available to meet it. Important though that is as a component of cost in litigation, you cannot really look at one such element in isolation. The management of disclosure is a sub-set of case management generally. Case management is a component of what makes justice accessible. Access to justice is a fundamental right in society and it is amongst the primary duties of government to provide and foster it. One of the reasons why I watch and report on what is said by US Magistrate Judge John Facciola, both in his court and outside it, is that he has the same strong sense that his specialist subject – which is the same as mine – is but a part of a wider set of issues.

Dame Hazel Genn QC is professor of socio-legal studies at UCL. Her December speech attacking the decline of civil justice is pithily written up by Joshua Rozenberg in his article Dame Hazel Genn warns of downgrading of civil justice. I see no point in repeating him when you can read for yourself his summary of what has been said (by others as well as Dame Hazel) about the role of government, the implications of Halsey and the retrospective views of Lord Woolf’s reforms.

I want instead to pick up a quotation from it before turning to the role of government. Lord Woolf is quoted as asking recently “Are we unnecessarily restricting the discretion of the case-managing judge?” It is not clear in what direct context he asked this, although the broad setting is the increase in costs when his reforms were supposed to reduce them. It seems to me to an odd question, given that the rules for which his work was the inspiration include, at the very top, a recital of the over-riding objective in Rule 1.1 CPR. Let us set that out in full:

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

… and let’s supplement it with Rule 3.1(2)(m) which (after reciting a set of specific case management obligations) says that

“Except where these Rules provide otherwise, the court may
take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”.

That seems clear enough. The court can do what is right to manage cases as long as its decisions do not conflict with anything else in the rules.

I do not particularly want to get into the debate as to the court’s power to order mediation or to punish in costs a party who unreasonably declines to go down this route. I will point you instead to a page on the CEDR web site When is it reasonable to refuse mediation which includes a link to Halsey (that is Halsey v Milton Keynes NHS Trust [2004 EWCA Civ 576). I cannot be accused of any anti-mediation bias if I refer you to a source whose purpose is the promotion of mediation. What concerns me is that the result of Woolf’s reforms, as embodied in the CPR, was not merely to create a “better” alternative to litigation (which was the intention, worthy at least as regards Woolf himself) but to make the courts so unattractive a proposition that parties must opt for mediation because they simply could not afford to go to court.

Many of the new pre-trial stages brought in by the 1999 Rules may have had the intention of promoting settlement, but they had the effect of increasing costs. All the focus went on pushing  parties towards settlement  and not enough went on streamlining the court process – except that judges were given, by the paragraphs set out above, an express power and duty to manage cases to further the over-riding objective.

Bringing the subject back to my own narrow patch, Woolf’s reports which underlay the new rules laid great emphasis on the use of technology to aid cost reduction and increase efficiency. All of it – all of it – disappeared when the rules appeared, reduced to a single line in Rule 1.4 (Court’s duty to manage cases) which says in Rule 1.4(2)(k) that “Active case management includes… making use of technology”. The word at the time was that the civil servants, under Treasury pressure, had struck out every reference to technology because they could not discriminate between court-funded systems (such as electronic filing) and the encouragement to parties to use technology themselves. If you add to this that judges are given no training whatsoever in the problems and solutions which technology involves, you can easily see why disclosure is often the biggest single cause of expense in litigation.

Over Christmas, I re-read some of what was said by the government in 1998 in the run-up to the introduction of the new rules. The Minister responsible was Geoff Hoon. We know better now, but we had no reason then to doubt that this fresh, new government would not do what it promised. What it promised was a civil justice system to be proud of, with investment in court systems and reform of the civil justice system. Hoon himself is a (reportedly) clubbable but colourless creature, a useful mouthpiece for more important people. There is no point in calling him a liar when all he has done in successive posts is to read out what others have put into his hands. It is probable, for example,  that when the people of Manchester recently rejected road-pricing (by a majority of four to one) in exchange for a promised £1.5 billion of investment in transport schemes, they reckoned that a Geoff Hoon promise was not worth having; past form suggested that they would get the road-pricing but that the promised investment would evaporate.

So it was with civil justice. There has been no investment in the civil courts, just the settlement-driven rules. High-quality staff (and you do not often catch me praising civil servants as a breed) are under-paid and there are not enough of them. Civil legal aid has all but disappeared – Hoon’s speeches on this from 1998 make it clear that this was a money-saving and public relations war against lawyers and that the real victims, those who would be denied access to a lawyer as a result, were but collateral damage in that war. Those killed or mutilated in the real war for want of adequate protection, promised by the Ministry of Defence (G. Hoon Prop. 1999-2005) but not delivered, were similarly victims of inter-department in-fighting.

I have just submitted the title of a keynote speech I have been asked to deliver to a conference run by Ark Group on 8 and 9 June in London. I have called it “The Empty Bear Garden”. The Bear Garden, for those who do not know, is a space on the way to the QB Masters’ Corridor in the High Court in London. When I was a young litigation lawyer, it was always packed with barristers, solicitors and clients getting ready for hearings or chewing over their outcome. It was empty when I last went through it, and I was told that this is now usual. It is a tangible sign of the decline of litigation, driven out by high court fees and procedural fences and ditches.

Lawyers themselves are not blameless in this – one hears of hourly rates for fairly ordinary cases which suggest an almost suicidal approach to the market-place. The market can, however, regulate that for itself, aided by judges and costs judges striking down extravagant claims on assessments or taxations. The key lies not just in the rates but in the number of hours which have to be spent to comply with a procedural regime which has built into it a deliberate aim of driving litigants out of the system and into private mediation.

The corollary to the judges’ powers to make “any order” is that parties can seek any order which will abbreviate the number of hours spent in the passage of a case from issue to trial. The Rule 3.1 discretion is buttressed as regards disclosure by specific provisions designed (and well-designed – this part of the CPR, at least, is consistent with Woolf’s positive procedural aims) to cut through unnecessary disclosure and to allow the judge to get at what matters. Judges with a grip on the subject can require parties to argue why a particular aspect of disclosure is needed – that is, will be helpful in finding the facts on which justice depends – and can demand costs estimates showing one approach versus another. Proportionality is the product of cost against likely value.

There is little evidence that parties are coming to CMCs equipped to answer these questions, or that judges are making them do so. The fancy charging rates would be easier to justify if they were accompanied by evidence of an ability and willingness to cut the hours involved and to force the imposition of the same on opponents.

To revert to Dame Hazel Genn’s strictures, the true aim of the push to mediation should have been to make mediation attractive for its own virtues, not a skip into which civil disputes are dumped because the civil justice system is too expensive. We cannot look to the government for help on this. As with so many other things, they missed the chance when money was plentiful and the administrative side of the justice system is already feeling the cuts – Jack Straw was first Minister out of the traps with announcements of budget-slashing even before the Prime Minister had summoned the guts to admit that recession was upon us.

If government sweeps the subject aside, then preserving litigation as the entitlement of every business and citizen lies in the hands of those who administer justice in the courts and those who appear before them. It is rumoured that Lord Justice Jackson, as part of his review of litigation costs, is keenly interested in the metrics – including the identification of which stages are expensive – as a precursor, presumably, to a focus on what can be done to reduce them. The proponents of mediation as a duty have a duty themselves to ensure as best they can that the civil justice system is offering a remedy against which mediation can be measured. At the moment, the government policy to drive citizens and businesses out of the system is working a treat – when viewed from the Treasury. The only “investment” made by the government is giving the label “Access to Justice Minister” to a worthy but dull woman whose name I forget (Gordon Brown is keen on inviting outsiders in to supplement the dismal lack of ability in his own ranks – he could offer the job to Hazel Genn perhaps).

Whilst I was writing this, I took a call from one of the many litigants in person created by this government’s attrition of legal aid. He had a disclosure issue and hoped that I could help – which I obviously could not do since I no longer practice. Any judge will tell you of the difficulty caused by litigants in person, the new underclass of often worthy people with decent claims who cannot find a lawyer to represent them. I have no idea if his claim is good or bad, but many good claims go unmade and many bad ones proceed in the absence of legal advice. This is a serious detriment not just to their personal right to justice but to that of everyone else, as conscientious judges try to make sure they get a fair hearing – ensuring that parties are on an equal footing is, after all, the very first factor listed under the overriding objective.

All that many people want is a hearing. Ministers and MPs, cocooned in their comfortable expenses, have had it in their power to make justice accessible to people like my caller. Judges – good judges, many of them – do their best with second-rate tools. British Justice was still the envy of the world when Hoon stood up to make his speeches in 1998. Now, not only are the poor (that is, anyone who is not very rich) barred from access to our courts but big international businesses are deciding that they also cannot afford the fares and are looking elsewhere for justice. It is all a bit like transport, where the government’s expressed aim to encourage the use of buses and trains has been subverted by deliberate policies with the opposite effect, weak leadership and punitive expense, to the Treasury’s benefit and users’ loss. Remind me who is the Secretary of State for Transport now – oh yes, “Buff” Hoon (say it quickly).

Dame Hazel Genn QC has a platform from which to express her cogent and excoriating (Joshua Rozenberg’s word) views which embrace both the defects in the 1999 rules and wider government policy. Her Hamlyn Lectures will apparently be published in the Spring. If the phrase Rozenberg quotes – that mediation is not about just settlement but just about settlement – is representative of the whole, I look forward to reading them.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Access to Justice, Case Management, Civil justice, Court Rules, Electronic disclosure, Judges, Litigation, Litigation costs. Bookmark the permalink.

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