Is Mediation Justice?

Private justice is justice denied according to the Adjudication Romantics, a group who believe in the virtue of public justice and who have drunk deep of Jeremy Bentham’s cup of open justice.

Drinking deeply of any stimulant is unlikely to provide a balanced view of anything especially Bentham’s ideas about the law.

A consideration of the views of one Adjudication Romantic, Professor Genn, are required following the recommendations for near-compulsory ADR in the Final Report of the Civil Justice Council’s ADR Review which was published in November 2018.

In a number of talks, including her 2012 F A Mann lecture “Why the privatisation of civil justice is a rule of law issue”, Professor Genn’s theme is that there is an irreversible “…decline, and now virtual extinction of trials in the civil courts and with it public determination of the merits of civil disputes…”

Professor Genn is not alone in arguing against the wider use of private justice (ADR) to resolve disputes.  Her chief criticisms are:

1                     The civil trial is vanishing and this is to the detriment of the good regulation of society;

2                     The only trials which are on the up are public law i.e. judicial review;

3                     None of this accords with Bentham’s commitment to open justice as a means of regulating society and developing societal norms of behaviour;

4                     ADR is like climate change, something bad which cannot be detected but creeps up on you daily, year by year.

Each proposition needs to be considered to understand where the real issues arise given the likelihood of much more ADR in the coming years than England and Wales has seen before.

1                     The civil trial is vanishing and this is to the detriment of the good regulation of society

and,

2                     The only trials which are on the up are public law i.e. judicial review

The table below shows the UK Ministry of Justice statistics for the years since Professor Genn’s 2012 lecture:

It seems Professor Genn’s talk of the death of trials is, to misquote Mark Twain, grossly exaggerated.

It strikes the author that the correct approach to the issue of private justice is that it is justice.  Furthermore ADR is increasingly attractive to many citizens in an era when public adjudication is simply too complex and too expensive for most.

3                     None of this accords with Bentham’s commitment to open justice as a means of regulating society and developing societal norms of behaviour

Bentham writing in his “Truth v Ashurst or Law as it is, contrasted with what it is said to be” (1823) says this:

“…the truth was that ninety-nine men out of a hundred …. could not take the risk spending so much of their hard earned wages on the chance of winning under the common law.  The system crafted by judges formed so thick a mist that one cannot, if not in the trade, manage to receive justice.”

Bentham’s first rule is always his guiding light: the best reform is that which brings the greatest satisfaction to the greatest number.  All attempts to simplify (most recently by Lord Woolf in his Inquiry Access to Justice in England and Wales in 1994-1996) have led inexorably to renewed complexity.  Something more is required.

Cloud based, user-friendly Portals may solve part of this with the Government hard at work developing its system for low value personal injury claims and DisputesEfiling.com powering an online mediation pilot within the NHS Resolution mediation programme.  Even so apprehension amongst the profession and ignorance amongst ATE providers whether their premia are recoverable via ADR in clinical negligence claims says much about the attitude toward ADR in the UK.  Hence the forthcoming rules providing for near-compulsion.

4                     ADR is like climate change, something bad which cannot be detected but creeps up on you daily, year by year

Dramatic language but near-compulsion will cause many to ask serious questions about the role of ADR in civil justice.  The questions raised by Professor Genn toward the end of her 2012 lecture deserve attention:

“…in order to judge whether privatisation represents a social benefit it would be useful to know, for example:

·       What are the standards and levels of competence in the average private process?

·       What is the outcome and experience of users of private dispute resolution?

·       What is the immediate and continuing impact on the parties to disputes and is there a differential impact on claimants and defendants?  Stronger and weaker parties? Repeat players and one-shotters?”

These are important questions.  All the more so as we move toward near-compulsion.  In conversation with the author recently Sir Peter Cresswell made the point that mediation holds enormous potential but is entirely unregulated.  Professor Genn’s questions remain a challenge to ADR providers.

To some extent these challenges are being addressed.  Trust Mediation are looking at further raising standards in their recruitment process and developing a more diverse mediator panel. 

In 2016 after a small pilot the UK’s NHS Resolution agency (which manages the claims arising out of clinician mistakes in UK hospitals) introduced a permanent mediation scheme with Trust Mediation and CEDR on its Panel and through which 500 claims have been mediated with high success rates of almost 80% of cases settling either on the day or within the 4 weeks afterwards.  In the CJC’s Final Report in the ADR Review the NHS Resolution mediation programme was mentioned at para 7.13 on terms that addresses at least one of the issues raised by Hazel Genn:

“One method of getting quality assurance is to contract with one or more providers to provide neutrals  from  a  closed  and  highly-controlled “expert” list to litigants in a particular area or sector. Thus NHS Resolution and MPS have dealt with the issue in their schemes by appointing private, specialist panels through selected neutral provider organisations.”

These are signs of important change.  The impetus to change is about to get a big shot in the arm later this year when new rules calling for near compulsory ADR in England and Wales will lead to a colossal scaling up of mediations in that jurisdiction.

                       

Tony Guise

For thirty years, Tony Guise practised as a solicitor specialising in commercial litigation.  For 22 of those years he was involved in the major civil justice reforms in the civil justice system of England and Wales as President of the London Solicitors Litigation Association, the founder of the Commercial Litigation… MORE >