English
Court of Appeal Issues Important Decision on Mediation
In an expanded version of an article
appearing in The Scotsman on Tuesday 8 June, John Sturrock comments on the case
of Halsey v
While
it has no immediate application to
Such
was the perceived importance of the case, that the court invited oral and
written submissions from a number of interested parties in
In
Halsey, an elderly patient had died in hospital after suffering serious health
problems. His wife brought a case against the hospital
and her lawyers made a number of offers to mediate. These were refused by the
hospital trust. The court decided that, in the circumstances of that claim, the
trust’s refusal was reasonable.
However,
the court made clear that many cases are suitable for mediation, including
commercial claims, medical negligence and personal injury accident cases. This
underscores the value which mediation is perceived to have across a very wide
range of disputes. Because of the advantages of mediation over conventional
court procedures, the judges endorsed a previous case in which the judge said
that "skilled mediators are now able to achieve results satisfactory to both
parties in many cases which are quite beyond the power of lawyers and courts to
achieve….it may very well be that the mediator is able to achieve a result by
which the parties shake hands at the end and feel that they have gone away
having settled the dispute on terms with which they are happy to live".
Of
importance to lawyers is that the case suggests that, in
It
will be interesting to see if the Law Society of Scotland issues any guidance to
its members. Certainly, a number of firms in Scotland now routinely consider the
mediation option with their clients in some cases. As confidence in mediation
and awareness of how it works grows, this trend is likely to continue.
One
of the concerns following earlier cases was that some English judges were
effectively forcing parties to mediate, even if they did not wish to do so. This
seemed to find expression in court awards of costs against successful parties
which had failed to show that mediation had no real prospect of success. The
English court felt that this went too far. Mediation is essentially a voluntary
process in which no-one is bound by anything until an agreement is reached.
Indeed, the judges contended that to force someone to mediate could be
counter-productive and potentially damaging to mediation. The Court of Appeal
decided, therefore, that a court should not compel a "truly unwilling party" to
mediate.
Interestingly,
there is evidence that even reluctant participants in mediation often find that
they reach an acceptable agreement. In places like Ontario where mediation is
mandatory, the success rate for mediation is often just as high as it is
elsewhere. In the Central London County Court, a mandatory mediation scheme has
recently been introduced. It will be interesting to see how this squares with
Halsey. In the US, constitutional challenges to compulsory mediation schemes
have apparently been unsuccessful.
Nevertheless, the judges in Halsey reaffirmed that parties will be expected to take serious steps to resolve their disputes by mediation and to consider whether the case is suitable for mediation. If they do not do that, the court confirmed that it may still penalise the refusing party, even if that party is successful in court. This is particularly important where a court has made an order (as it can in England) requiring parties to consider mediation. As a result, it may still be unsafe in England to reject mediation without a good reason. This approach towards active encouragement of mediation seems sensible: without court encouragement many cases which would benefit from mediation simply would not be taken to mediation. This kind of judicial prompting has been very effective in most jurisdictions. It is also reflected in the recently published draft European directive on mediation which proposes that courts shall, when appropriate, invite parties to use mediation in order to settle their dispute and can require parties to attend an information session on its use.
One
final point from Halsey. Mediation is confidential. Therefore it is important to
the integrity of the process that the appeal court agreed that a judge cannot
inquire into what happens in mediation and in particular cannot ask for reasons
as to why a particular mediation has not resulted in an agreement. Mediators and
parties will be comforted by this. The success of mediation is hugely dependent
upon the trust which is built between the mediator and those involved,
particularly in private meetings. During these sessions, the mediator and
parties and their advisers can address issues of real concern and have frank
discussions about objectives, prospects and risks, all knowing that nothing will
be said to another party unless that is specifically authorised.
What
does this all mean for Scotland? There is already a significant increase in the
uptake of mediation in Scotland in cases which would otherwise make their way
through the courts. Mediation is occurring before formal court or tribunal
proceedings are begun and at all stages of court or tribunal proceedings. It is
also used when court is not an option for a variety of reasons. This suggests
that many lawyers and their clients are opting for this route even now. It is
interesting that this is happening in Scotland without the judicial and
legislative encouragement found elsewhere in most developed court systems. So
far, the courts have been reluctant to encourage mediation (outside family
disputes) except in isolated cases. However, it is understood that new court
rules are now under consideration to encourage greater use of mediation in
Scotland. This would be a real step forward. Increased court encouragement in
Scotland would be beneficial to many parties.
The
Scottish Executive is increasingly supportive of finding new ways to help people
resolve their disputes quickly and consensually. The financial and other savings
in the longer term are of course enormously attractive when budgets are
necessarily limited, but there is the more immediate prize for the judicial
system of better use of scarce resources at a time when there is increasing
pressure on the courts in crime and elsewhere.
The
value of the Halsey case will lie ultimately in restoring balance and achieving
mature understanding – including here in Scotland - about the benefits of
mediation. It is likely to enhance the use of mediation significantly. There
will still be sceptics of course and, as the Court of Appeal acknowledged,
mediation is not a universal panacea. But one test may be this: is mediation
more beneficial in many cases than the alternative of court? The answer will
often be an emphatic “Yes”.
For confidential guidance on using mediation in disputes or differences, contact Pamela Lyall
Core’s next mediator training course begins on 30 September 2004. Details from Lynne Davies
For
lawyers who wish to be able to advise clients knowledgeably, Core’s“Advising and
Representing Clients in Mediation” is a popular course: the next takes place on
26 November 2004. Details from Lynne
Davies
For
details of our in-house courses on “Managing and Resolving Conflict using
Mediation and Collaboration”, contact John
Sturrock.
For
more information on Core’s leading edge mediation, coaching and strategic work,
visit our website: http://www.core-solutions.com/
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