This article is based on talks at two recent conferences on the reform of civil justice.
As I stood in a hailstorm on a windswept road with a measuring tape in my hand, while two landowners sought to resolve a boundary dispute, I wondered about my change of career. But when, after two hours, they resolved a potentially long running and destructively expensive dispute where the only alternative seemed to be court proceedings, I was reminded of why it is a privilege to do what I do as a mediator.
I am acutely aware of the charge of special pleading which can be directed against any of us who appear to argue for that in which we are perceived to have a stake or interest, but I shall do what I can to set things out as I see them from my particular vantage point.
Nearly every day I receive emails, newsletters or Google alerts telling me about this or that high level initiative in other jurisdictions to promote the use of mediation in civil and commercial matters. We are, in my view, somewhat behind here in Scotland and I fear that, with the recent review of our civil court system, we may be in danger of missing an opportunity to remedy that. This seems disappointing in one way but, on the other hand, it may not matter as much as we think… a point which I shall explore later.
Most of us have heard of the analogy of the frog in the gradually heating water which, unaware of its changing environment, is unable to save itself when the water gets too hot. If we wish to survive and thrive, we all need to acknowledge that we are living in a rapidly changing world, where our traditional ways of thinking and doing things are being challenged and where what has changed will not change back. This has implications for us as we think about, and measure, what clients and others expect of a modern civil justice system, the role of mediation within it and indeed the role of courts.
I start with the expression “ADR” or “alternative dispute resolution”. This has been in use for some years but creates difficulty for a number of reasons. Firstly, it can be viewed as embracing a number of non-court adversarial functions such as arbitration and statutory adjudication. For some, it refers to non-adversarial methods including negotiation, conciliation and mediation. For many it is used synonymously, and sometimes confusingly, with what is generally recognised as being the most used “alternative” approach, namely mediation. But that gives rise to a second problem: “alternative” to what? To the courts? To adversarial dispute resolution in general? To conventional settlements achieved in litigated cases? And why “alternative” we might ask, rather than “complementary” or “supplemental” or “early”?
I believe we should consign the expression “ADR” to the waste bin of terminology which confuses and constrains. We need clarity and certainty. On that theme, I devote my remarks largely to the topic of mediation simply because its growth in recent years is a phenomenon worthy of our consideration in the context of the reform of civil justice. In doing so, I run the risk of failing to do justice to arbitration, arb-med, conciliation, early neutral evaluation, collaborative law, mini-trials, expert determination, online dispute resolution, and other emerging non-court approaches. However, in a short commentary, I must accept that risk.
What do clients want?
I take as my primary objective identifying how we can best help people who have unresolved problems to resolve these in the most effective way for them. To find out how we can best do this, we may need to challenge some of the assumptions we make about how we do things, the orthodoxies which have prevailed. In doing so, I suggest that we should identify our over-riding purpose. Respectfully, I suggest that this is not just to improve the functioning of the courts nor to enhance the opportunity to decide cases, important though these are in a civilised country, nor indeed is it to improve settlement through the courts, important though that may be.
I would contend that our over-riding purpose is to ensure that the range of problems faced by people, organisations, businesses and communities can be addressed effectively, constructively and efficiently, wherever possible by restoring or preserving relationships (or bringing them to an end sensibly and with dignity) and minimising costs in time, money and stress. That gives us our benchmark.
Mediation is proving to be an important method to achieve this purpose in many jurisdictions, including, notwithstanding some reluctance to formalise its use through the courts, our own. This is mediation which is much broader in scope than simply an alternative to court. Experience suggests that clients and legal advisers are using mediation at many stages, very often in advance of, or instead of, any court proceedings.
Reflecting on the topic of purpose, in his thoughtful recent book, The End of Lawyers (2008, Oxford University Press), Richard Susskind uses the example of the manufacturers of power drills who alight on the idea that what they sell to customers is not power drills as such but holes in a wall. The power drill makers’ task is to ensure that the service they provide is the most competitive, efficient and imaginative way of giving their customers what they want – holes in their walls. In our context, what do people with unresolved problems want? What is our hole in the wall? Is it a better court service? Or is it a range of better ways to resolve problems? And how do lawyers add value in that context? Susskind himself goes as far as to say that, in the future, added value will be in the provision of dispute avoidance rather than dispute resolution – clients will prefer (or indeed demand) a fence at the top of the cliff rather than an ambulance at the bottom.
Julie Macfarlane’s latest, widely acclaimed, book, The New Lawyer (2009, University of British Columbia Press), in which the author focuses on the growth of the settlement culture around the world and the requirements that this places on today’s lawyers, concludes: “The most successful lawyers of the next century will be practical problem solvers, creative and strategic thinkers, excellent communicators, who are persuasive and skillful negotiators , thoroughly prepared advocates for good settlements, who are able and willing to work in a new type of professional partnership with their clients, and aware of the need to constantly update their knowledge of conflict management processes and techniques as well as substantive law.”
A range of dispute resolution methods
What does this mean for us? In Scotland, I believe that we may already be better attuned to these themes than in many jurisdictions. We will need to provide a variety of processes to meet client needs. This means offering choices, with no presumption in favour of any one process. I suggest that this does mean seeing the courts of law as one of a range of methods of dispute resolution in a modern society. And one which should serve usually as a very effective last resort in those cases in which it has a role to play. That proposition has been accepted by many people in many jurisdictions (including our own). I understand that the recent review of our civil court system has taken a rather different approach, concluding that access to the courts is a fundamental right which should not be modified (“impeded”) by any requirement to “resort to” ADR first.
However, many observers and users are increasingly aware that the courts exist at one end of a broad spectrum. Understandably, the activity of courts accounts for a relatively small percentage of the work of lawyers, an even smaller percentage of problem-solving in this country and less again of economic activity. Most people with a problem, legal or otherwise, will neither wish to nor be able to access the courts. A substantial majority of civil and commercial cases which do come in to the court system (some statistics give a figure of over 95%) are not decided upon by a judge. So, it may be pertinent to ask: is the energy, and the accompanying financial and other resources which are dedicated to that end of the spectrum proportionate? Can these cases be sorted much more quickly and cheaply?
I suggest that the answer to these questions is respectively “no” and “yes”. Susskind says that we need to recognise that “wildly excessive and disproportionate amounts of time, energy and cash are dispensed on dispute resolution.” Certainly, at a time of severe public sector spending constraints and a drive for sustainability, public funding to support a system in which relatively few cases result in a judicial determination may (and should?) come under scrutiny. We might have to consider whether, if a substantial proportion of cases in the judicial system resolve in some way without judicial determination, people should be actively encouraged in appropriate cases to try proven means, of which mediation is now a tried and tested example, to expedite that resolution, before being allowed to use or continue to use the publicly funded infrastructure of the court system.
Incidentally, some resistance to mediation may in part be due to concern that to encourage or even compel people to try mediation is contrary to article 6 of the European Convention on Human Rights. I understand that the European Court of Justice has recently decided to the contrary in the Italian case of Alassini v Telecom Italia SpA (C-317/08). That may be a very important ruling.
Nobody is suggesting that settlement can be compelled and therefore that people’s right to go to court should be removed. But, as the Italian case illustrates, there are legitimate ways to address many cases in a more economically efficient way. This whole issue of appropriate – and proportionate – use of resources is a really important policy matter and one on which I doubt that the recent review will – or should – have the last word.
In any event, we know that, for many users of our legal services, litigation of any sort tends to be unattractive not just because of expense or delay but because the adversarial process is not ideally suited to the needs of the modern era. That way of dealing with differences is not what most people want. They desire a different involvement and engagement in decision-making about their problems. Control, cost management, creativity and certainty are important. Mediation can provide this.
Ultimately, this could also be about giving power back to the parties – where the process belongs to those whose problem it is and not to advisers or judges. It is perhaps profoundly about the democratisation of the problem solving process. This may have a strong resonance with many Scots.
Or, as the EU Directive on Mediation (Directive 2008/52/EC) which promotes active encouragement of mediation, puts it: “The value of increasing the use of mediation rests principally in the advantages of the dispute resolution mechanism itself: a quicker, simpler and more cost-efficient way to solve disputes, which allows for taking into account a wider range of interests of the parties, with a greater chance of reaching an agreement which will be voluntarily respected, and which preserves an amicable and sustainable relationship between them. The Commission believes that mediation holds an untapped potential as a dispute resolution method and as a means of providing access to justice for individuals and business.”
So, my sense is that this is not just about a more effective or efficient court system. Susskind comments that there is “a dawning realisation that litigation, in the long run, may not be in the commercial interests of any party, other than in exceptional circumstances.” The biggest risk for the courts in Scotland may be that they simply become less relevant to an increasing number of people with differences, disagreements or disputes – with problems to solve – who are turning to more flexible processes which offer a more creative and forward-looking option. To that extent, some have speculated that the civil court review may not be relevant to most people with disagreements in Scotland and that its recommendations may matter less than we imagine.
This is not to say that courts are redundant, far from it. In those few cases which (even now) are decided by judges, excellence, speed, value for money and clarity and fairness of procedures will be critical. But for most people, the goal is likely to be accelerated resolution of problems, in a more collaborative and creative way. This is still – or can be – about legal rights of course (it is a common misconception that mediation in some way avoids or ignores assessment of legal rights), but it is also about a host of other interests, relationships, needs and issues in a complex analysis of risk and opportunity. Indeed, the interplay of rights and interests in a modern legal system is a fascinating study in itself.
In negotiated resolution, law is only one aspect of a many sided coin and is not, in many cases, the dominant feature – unless we choose to make it so. One of the salutary experiences for me as a mediator in over 200 mediations is to appreciate the multi-dimensional nature of nearly every dispute and how limited was my own understanding of that as a practicing lawyer. Fortunately, many skilled lawyers in both branches of the profession now fully embrace this. Mediation provides a mechanism whereby this reality can be accommodated.
The recent review encouragingly gives examples of mediation occurring elsewhere in other parts of the world. There are many good things said about mediation in Chapter 7 which provides a helpful summary. More generally, there is considerable evidence that its use is actively supported and encouraged by Governments and the judiciary throughout the world in order to meet the needs of consumers, communities and commerce.
In Hong Kong, the Secretary for Justice recently chaired a cross-sector working group on the way forward to facilitate the more effective and extensive application of mediation in both commercial disputes and those at the community level. In the foreword to the report of the working group, the Secretary for Justice said: “The time, costs, acrimony and uncertainty involved in traditional litigation raise hard issues as to whether the present dispute resolution process is adequate to meet the needs of justice and efficiency. Increasingly, mediation is considered the alternative or even the preferred method.”
The Court of Appeal in Hong Kong has fired a warning shot at litigants and their advisers: “Before the parties spend more resource and efforts…they will be well-advised to sit down to explore the option of mediation with their lawyers. From a business point of view, it is much better to spend management time and costs on restoring the project than on a piece of litigation which may ultimately result in no-win situation for both parties”. (Paul Y Management Ltd v Eternal Unity Development Ltd, 12 August 2008, CACV 16 of 2008)
Hong Kong has this year introduced a raft of measures to encourage the greater use of mediation. In Italy, we are told that there is now a duty on lawyers to inform their clients about the mediation option; mandatory court-based mediation has been introduced for labour disputes, divorce and various agricultural matters; and companies that refuse to mediate can be sanctioned in costs, even if they ultimately win their case.
In South Africa, the High Court in Johannesburg, in the case of Brownlee v Brownlee (Number 2008/25274), ruled that a failure by lawyers to send a matter to mediation at an early stage would be visited by the court’s displeasure. The Court deprived the lawyers of their full solicitor/client fees and limited them to the costs that they could recover on the party/party scale.
Further examples can be found in India, Japan, Dubai, China, Bulgaria, Bosnia, Croatia, Serbia, Macedonia, Albania and of course in England, where Lord Justice Jackson, in his recent report on civil litigation costs (Review of Civil Litigation Costs: Final Report, December 2009), found that mediation should be at the heart of every litigator’s toolkit and should be more widely attempted prior to litigation. Incidentally, he also found, contrary to widespread belief, that mediation is suitable for many personal injury cases.
The major law firm Herbert Smith recently reported (ADR eBulletin, 4 November 2009) that mediation is a truly mainstream tool in the dispute resolution landscape in England “with a sophisticated user and practitioner community now evolved.” Senior English judges are on record as supporting it and the UK Government has announced very substantial cost savings (£90 million for 2008-9) as a result of its ”ADR pledge”.
What about Scotland?
Given what is happening elsewhere, we may need to be careful before we can conclude that the current review is bringing Scotland onto an equal footing with other Western (or other) legal systems. It is arguable that we remain behind other jurisdictions and the review, perhaps understandably given its remit to examine the civil courts rather than civil justice, has not quite given us the impetus we might have hoped for with regard to developments in problem-solving, and in particular the use of mediation.
This suggestion is supported by the important report of the Scottish Government’s Business Experts and Law Forum (BELF, published in November 2008). BELF noted that, although mediation is widely available in Scotland, it has not yet been fully incorporated into the Scottish civil justice system as an option for routine consideration in every dispute. In this respect, it concluded, Scotland is not on an equal footing with other jurisdictions, including England and the United States. It recommended that the Scottish Government should develop a coherent strategy to present Scotland as a centre of excellence for the full spectrum of dispute resolution processes. The Unique Selling Proposition (USP) of the strategy would be that each type of dispute resolution is represented, providing users with access to a quality service across the spectrum of dispute resolution processes.
Certainly, if we aspire to project Scotland as a centre for international dispute resolution, with the economic benefits that may bring, or even as a modern legal system for Scottish-based business users as well as individuals, we will need to expand our thinking further and be more responsive to client needs and comparative changes. The BELF report made clear the value business places on avoiding litigation and on resolving disputes using mediation as a key dispute resolution option and recommended that it should form an essential part of any modern civil justice system. A great many commercial disputes currently proceeding through the courts could be resolved by mediation, the report said, saving businesses considerable time, expense and uncertainty and freeing up court time for cases that truly require full judicial analysis. That seems to make good sense.
The extra edge can be provided in the help which courts can give in Scotland as they have done in many other jurisdictions to encourage greater use of mediation. There are relatively straightforward steps that could be taken now to enhance the role which the Scottish courts could play:
The Scottish Government itself can assist by implementing its procurement guidelines promulgated a few years ago, by including mediation clauses in its own agreements, and by issuing a similar pledge to use mediation to that issued south of the border. As the BELF report concluded: The Scottish Government should reiterate publicly its support for mediation as a dispute resolution option for businesses and develop a proactive communications strategy to promote its wider use by the business community.
Reconciliation and looking forward
It may be interesting to speculate why the civil courts review did not go further on mediation. Dame Hazel Genn’s remarks on mediation in her Hamlyn lecture in Edinburgh in December 2008 (now published: The Hamlyn Lectures: Judging Civil Justice, 2008, Cambridge University Press) are heavily relied on in the review report. Some commentators have challenged Dame Hazel’s comments on the subject of mediation and it is interesting to speculate what might have happened had the debate developed differently. However, notwithstanding this and perhaps paradoxically, I believe we are better set in Scotland to embrace the new problem-solving culture than in some places. Indeed Scottish lawyers have probably a more natural inclination to cooperation and negotiation than in many jurisdictions.
We are actually seeing mediation develop here regardless of the extent of intervention by the courts, in both litigious and non-litigious settings. In our business alone, we have undertaken well over 350 mediations in recent years, with hundreds of legal advisers from throughout Scotland and elsewhere, across a wide range of sectors from construction to planning, housing to professional services, banking to IP, family partnerships to agriculture, workplace to high tech, often prompted by clients who have been exposed to what works elsewhere – and this is just one small corner of activity. We have a real opportunity to build on the work which has been done and perhaps develop differently.
I suspect, as Julie Macfarlane suggests, that the two strands of adjudication and cooperative negotiation or consensus building are reconcilable and that convergence will yet occur. That is what we must hope for: that out of the old, will blossom the new. We need to build on what the recent review has given us in the full knowledge of how significant are current trends. We do need to be careful that we are not left behind as a little backwater in the far north west of Europe perceived to be reluctant fully to embrace change. Remember the frog….
That takes us back to where we started. I believe that we are moving into a new era. Just as we moved from dispute resolution based on trial by combat to dispute resolution based on trial by jury or determination by a judge, there is a shift (as the prominent academic and practitioner from Georgetown University, Professor Carrie Menkel Meadow, has observed) towards a “post-litigation” culture around the world. Increasingly, people are seeking and will find different ways of dealing with disputes, including those in which they use an impartial third party acting as mediator.
Use of traditional physical courts may tend to decline, and litigation as we know it may tend to wane. Non-litigious dispute resolution, including mediation and negotiation, will expand in its many forms. Online Dispute Resolution is already very significant for millions of disputants using EBay and other web-based services. Risk management and dispute avoidance is likely to become much more prevalent. In more stringent economic times, just as in the National Health Service, we will need to invest in prevention rather than cure. Those who continue to adapt and support clients in these developments will prosper.
But there is nothing new or prophetic here; we are simply rediscovering that which lies at the heart of all good lawyering:
“I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of the lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul.” Mahatma Gandhi
Or, as Abraham Lincoln put it: “Discourage litigation. Persuade your neighbours to compromise whenever you can. As a peacemaker, the lawyer has superior opportunity of being a good man. There will still be business enough.”
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