By Paul Sandford
In short, a great deal. Probably more than it realises or cares to admit.
In this article I am specifically addressing the UK and more particularly, the legal jurisdiction of England and Wales. However, the views I have set out below apply in other jurisdictions.
In previous articles I have extolled the benefits of civil mediation and demonstrated why it gives good value for money. Amongst mediation’s many virtues are that it is inexpensive, easy to organise and implement quickly. It has a high success rate. More often than not parties to individual disagreements and disputes walk away with settlements that not only save considerable amounts of time and money, including public time and money but invariably result in just and fair settlements. All views and opinions get a fair airing and as well as people having their say, guided by the mediator, all those involved listen to what is being said. The unstoppable force versus immovable object scenario that all too often pervades civil litigation is very noticeably absent.
In future articles I will explain what mediation related benefits accrue to lawyers, and other groups including business people, HR officials, the voluntary, public and commercial sectors, the insurance industry, the medical profession, insurance companies and the general public but for the purposes of this article I will focus on government.
The UK government is responsible for providing, funding and managing the civil court system that serves all of those who wish to take civil cases of one form or another to court. These will include but are by no means limited to, commercial disputes, consumer disputes many of which are quite low value, property and landlord and tenant disputes, boundary and neighbour problems, some “family” matters relating to such matters as probate disputes and mortgage non-payment. Additionally there is a separate system of family courts, the criminal court system and a number of specialist tribunals that have responsibility for matters such as social security and tax. At a later date, employment matters that are the responsibility of the Employment Tribunal will be looked at separately.
When I was a young lawyer, litigation was not the behemoth that it is today. In recent years, the advent of such concepts as “no win, no fee” and legal insurance has resulted in a mushrooming litigation industry. In many respects insurance premiums, e.g. for lawyers and doctors, have gone through the roof. Cynical lawyers see potential opponents as “fair game” and one suspects that at times the tail is wagging the dog rather than the other way round. I am all in favour of people who hitherto might have been reluctant to go to court doing so in order to secure compensation and other remedies but the conflict ridden and driven system we have at present is not the answer.
A few years back when I found myself in a Croydon shopping centre being touted by representatives of a firm of solicitors using only loudhailer to entice shoppers to their makeshift stall I thought something was wrong. In similar vein, at a time when I had just completed some not altogether satisfactory hospital treatment I was literally bombarded with calls from unknown and unsolicited sources asking me if I had had a medical accident and if so would I be interested in instructing lawyers. Much as though I and many others may deplore such trends they are a reality and will not wither away and die any time soon. The government may have taken note of trends but in truth has done little or nothing except to allow the existing system to perpetuate.
To a limited extent, some of the costs of maintaining the civil justice system (and indeed the family court system) are offset by requirements that parties to cases pay substantial and ever increasing court fees not just at the outset but at almost every stage of an individual case. However, as high as these fees are they do not by any stretch of the imagination cover the costs of maintaining the civil justice system.
The reasonably well funded court system that existed when I qualified as a solicitor back in the mid-1980s is a thing of the past. Successive governments, even those purporting to be progressive, have systematically cut spending on the courts. There have been numerous court closures. People can wait up to a year (or more) even for a preliminary hearing and from start to finish a court case can take in excess of two or three years to reach a final hearing. Along the way there will be interim hearings, adjournments and other delays (some because of lack of resources) et cetera, et cetera and one can only deduce that at the end of the day the one-time hopeful litigant is left with a very bitter taste in his or her mouth. Case files that lie around for months, effectively going nowhere still have to be administered so huge amounts of administrative time is taken up, effectively administering “on the road to nowhere”.
In conventional spending terms the only way for this very unsatisfactory situation to be resolved would be for the government to spend a huge sum which will have Treasury officials reaching for their heart pills and scores of vote losing outraged cries in the popular press. This type of spending commitment will never happen and indeed, should not happen. No government or prospective government is going to admit that its predecessors of the same persuasion got it wrong.
As times, individual government ministers have indicated a liking or a preference for mediation. Mediation “champions” in government come across as quite isolated individuals. They never seem to remain in post very long and given the frequency of government ministerial reshuffles they find themselves in the justice department one day and the foreign office the next. One particular high-ranking member of government who supported mediation and made some very positive pronouncements on the subject subsequently departed. Unfortunately, the ostensibly good work undertaken by that person seems to have been forgotten. A governmental consultation was implemented earlier this year but the outcome is still awaited three or so months after the closing date. In recent years there have been some mediation related initiatives of sorts not least in respect of so-called “small claims” and there have been some moves in the National Health Service but these notwithstanding, the status quo remains.
The English and Welsh judiciary seems to be divided. There are those who are absolutely in favour of mediation and in a number of high-ranking, authoritative decisions some have said so. Others are rather more neutral. Some senior judges have gone so far as to sensibly state that those who unreasonably refused to mediate should be heavily penalised in costs but as potentially important as such pronouncements are, they seem to get lost in the mire of governmental indecision. One might reasonably expect the government to take the lead on this all-important matter. It should be taking a proactive stance and supporting those within the judiciary who advocate mediation. Instead, the lack of such support serves only to encourage old-fashioned bad practice.
Can mediation help fix some or all of this? Undoubtedly yes!
Given there are plenty of qualified civil mediators in the UK, most if not all of them very well trained, a few very simple changes in the civil court rules that prescribe procedures in England and in Wales could result in a plethora of time and money saving mediations in both so-called big complex cases and low value matters. Aside from the fact that it could, disingenuously or otherwise, claim credit for such a “radical” step, the UK government would quickly notice: –
• a significant reduction in civil case numbers which means that for those that are left, there will be better turnaround;
• court administrators and judicial officials who are presently overworked and in some respects simply shuffling paperwork will find themselves freed up to do much more useful work;
• a more satisfied general public, many of whom will have been the recipients of a better quality of justice;
• considerable savings of public money that is so desperately needed for so many things, this even allowing for a possible reduction in civil court fees;
• fewer internal wrangles involving the Justice Department and the Treasury.
Clearly the views of those who have contributed to the aforementioned consultation should have their views taken into account and the government should not ride roughshod but at the same time, the government has a duty to give consideration to the public interest, an important concept that should not be honoured in the breach.
The government may claim otherwise and argue that “it is not as simple as that” but in reality, it really is as simple as that. True, there is no magic wand and the benefits of mediation would not accrue “tomorrow” but the incidental cost of rejigging the court administration system to take proper account of mediation would be very modest. The benefits referred to above would become apparent within months.
A dedicated team of civil servants and/or members of the judiciary would be required to oversee matters. However, a small team working efficiently and unfettered for three or four months with the consistent backing of HM government really should be able to do the job. I will comment on lawyers at a later date but the legal profession’s ostensible inertia aside, in reality the only thing standing between the present highly unsatisfactory civil justice system and a mediation driven, just and fair civil justice system is government inertia/lack of political will.
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