ABOUT TDM
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MEDIATION in ENGLAND: SOME CURRENT ISSUES
Introduction
In this short article, I offer some thoughts on the current state of mediation in England with particular emphasis on the interface between litigation and mediation given that the English Court has the power to direct parties to attempt an ADR process prior to proceeding with litigation. In this latter context, I will review briefly four highly significant recent leading cases in the English Courts.
As is the case in most countries of which I have experience or knowledge, mediation in England is not regulated by any single governmental or other body and has been very much left to the private sector to arrange for itself although there are a number of statutory mediation bodies and schemes and, of course, there exists a strong interface between the English Courts and mediation processes (see below). There are a number of private bodies which train, accredit and register mediators as well as providing mediation and mediation support services; the leading such body in England is the Centre for Dispute Resolution (CEDR - founded in 1990), which is international in outlook, but mediators are also trained by and provided by other bodies including the Chartered Institute of Arbitrators and the Academy of Experts.
One important aspect of mediation in England is that many of its leading practitioners are from non-legal backgrounds, some being industrial psychologists, some from a human resource resources field, and others from the training world. I am aware of several outstanding mediators from these backgrounds with little frontline commercial experience of their own and certainly no legal experience. These mediators have proved successful because of their people-oriented skills and their ability to manage the relationships with and between thedisputant parties; these skills differ from the skills required of lawyers and, in particular, of barristers. While I do not suggest that lawyers cannot make good mediators, I am unpersuaded that the analytical and forensic skills of lawyers and barristers (and arbitrators) can easily be put aside as is generally necessary in a mediation environment.
Mediation Styles
There are many styles of mediation, varying both as between different individuals and also as between different countries, in the latter case reflecting differences in the respective cultural and commercial environments. Detailed analysis of the differences between mediation styles and mediation cultures is beyond the scope of this article; the topic has been thoroughly aired in journals around the world in recent years.
The mediation style generally taught in England is facilitative as opposed to evaluative whereas the latter appears to be rather more prevalent in the USA; however, individual English mediators adapt their approach to each specific case and also to their own individual styles. In the facilitative approach to mediation, the mediator acts as a third party neutral assisting the parties to engage in discussions with each other and with the mediator; the latter will normally avoid expressing any form of opinion on either party's position, strategy or prospects. However, a skilled English mediator will, without expressing any opinion, often persuade the parties to re-evaluate their own positions e.g. by asking challenging questions (the conventional term is "reality-testing") e.g. "Have you considered ... ?" "What if ... ?" "What do you think about ... ?" " What other options do you think might be available to you ... ?" and so on.
The evaluative approach to mediation, where the mediator does express some opinion on the parties' respective positions, is perhaps at least partly derived from the widespread use in the USA of what is called "Early Neutral Evaluation" (ENE) where, on it becoming apparent that a dispute exists, the parties submit their respective cases (in outline) to a mutually acceptable third party neutral, often a retired judge or an acknowledged expert in the relevant industry, who will then consider the outline cases and produce an opinion as to the merits. Such opinion is indicative and advisory only and, of course, has no binding effect. However, ENE is often effective in leading to the early resolution of disputes because any party faced with a dismissive or even merely a non-supportive opinion from the neutral, must necessarily consider carefully the advantages and disadvantages of proceeding to any other form of dispute resolution process, whether litigation, arbitration or otherwise. ENE is, in my experience, almost unknown in England.
Mediation and the English Courts
In April 1999, the 120-year-old Rules of the Supreme Court of England were replaced by the new "Civil Procedure Rules" (CPR) which radically transformed the litigation landscape. One of the fundamental policy drivers underlying the CPR was to reduce the pressure on the Court system in order to apply the Courts' limited resources more effectively and achieve the best value delivery of a system of justice. One of the ways in which this policy objective is most visible is the power within CPR for the English Court either (i) to send the parties away to engage in an ADR process prior to continuing to utilise the Court's resources or (ii) to penalise or handicap a litigant which has failed adequately to engage in an appropriate ADR process; such penalty is generally envisaged as being by way of costs.
While the CPR envisages the Judge directing the parties to have resort to an ADR process, so far as I am aware in English Court Practice since 1999 "ADR" in this context has always meant mediation. Although there are a wide range of mediation approaches, techniques and styles, from an international perspective the term "ADR" covers a far wider range of dispute resolution techniques than is covered even in the widest interpretation of the term "mediation". This article is not the place to consider in any detail the wide range of ADR techniques available and fairly widely used in the USA but little known in England: these include ENE, Med-Arb, Arb-Med, Executive Mini Trial, Executive Negotiation and many others.
There have been four recent significant cases in the English courts which have underwritten the new interface between the Courts and mediation.
- In the December 2001 case Frank Cowl v. Plymouth County Council, a minor dispute over the rehousing of elderly residents of a Council-run nursing home escalated into full-blown litigation with leadings QCs which went as far as the Court of Appeal despite the Council offering the elderly residents an ADR-type process (not in fact mediation) which could have avoided all litigation. The Court of Appeal, in upholding the Council's actions as reasonable, expressed strong disapproval that the case had come so far when there had been an ADR process available but which had not been utilised; however, the Court took no direct action in this regard, not least because the residents had already lost.
- The landmark case, Dunnett v. Railtrack, in February 2002 shocked the English legal profession in overturning the fundamental and very longstanding principle of English law that the winner of a case should be awarded its legal and related costs of conducting the litigation. Horses owned by Mrs Dunnett escaped from a field on to a railway track through an unlocked gate and were killed by an oncoming train; she sued Railtrack for negligence, principally in respect of the unlocked gate. As a matter of law, on the precise facts of the case, Railtrack won easily in the High Court and in the Court of Appeal and, in the normal course of events, would have been awarded its costs (i.e. Mrs Dunnett would have had to pay Railtrack's costs). However, at first instance the Judge had suggested mediation but Railtrack had taken the view that its chances of success in the litigation were so strong that the additional time and resources it would have spent on mediation would have been wasted; this appeared a conventional decision which, prior to the Frank Cowl decision above, would have been unexceptional. However, reinforcing the statement of principle given in Frank Cowl, the Court of Appeal refused to award Railtrack its costs and, in a powerful statement of judicial policy, made it clear that parties which failed to attempt an ADR process would be penalised accordingly.
- The Dunnett case appeared to open the floodgates and, it was argued by some, seriously undermined a fundamental principle of the English litigation system by imposing an open-ended obligation to mediate in all circumstances and at all costs. However, in May 2002 in Hurst v Leeming a clear line was drawn delimiting application of the 'Dunnett Principle'. Mr Hurst had been a partner in a law firm and had fallen into dispute with his colleagues which dispute had given rise to a succession of proceedings (all of which either Mr Hurst lost or were struck out) in part of which Mr Hurst had been represented in Court by a Mr Leeming QC. Following the dismissal of Mr Hurst's various cases he then sued Mr Leeming for negligence and lost again. The possibility of endeavouring to mediate the dispute between Mr Hurst and Mr Leeming had been raised, and rejected by the latter, at an earlier stage in proceedings but, on the facts of the case, the Judge held that Mr Hurst's litigious attitude and his unwillingness to accept the utter hopelessness of his case (either against his former partners or against Mr Leeming) in law was such that Mr Leeming had been justified in declining to take the dispute to mediation on the basis that there was no prospect whatsoever of success therein. The judgement makes it clear, however, that the threshold at which "no prospect of success" will apply is a high one.
- The fourth of this line of cases, in October 2002, was Cable & Wireless (C&W) v. IBM; by way of introduction to this case, two things need to be stated: (1) under s.9 of the English Arbitration Act 1996, following Article 8(1) of the UNCITRAL Model Law, if there is an arbitration agreement between the parties then the Court is obliged to stay legal proceedings in favour of arbitration; there is no statutory equivalent in respect of mediation or other ADR process; (2) following, inter alia, a 1992 House of Lords decision it is a settled principle of English law that an agreement to agree (and therefore an agreement to negotiate in good faith or an agreement to mediate) is unenforceable for lack of certainty. The C&W-IBM contract envisaged legal proceedings being stayed while mediation was attempted, comparable to the position in arbitration. The question before the Court was whether such a stay should be granted particularly given the long line of judicial authority on the unenforceability of agreements to agree.
In an article published in "Asian Dispute Review" in September 2002 I had argued, drawing from a very important decision in Australia and from my own supplementary research, that an agreement to mediate and/or to negotiate in good faith should be enforceable under English law, in appropriate circumstances, despite the 1992 decision. Applying substantially similar logic to that developed in the Australian case and in my article, the highly-respected Mr Justice Colman decided in C&W v. IBM that the Court did have the power to stay legal proceedings while mediation or other ADR process was attempted. Part of his argument was based on the fact that the C&W-IBM contract provided for a reference to CEDR and to a CEDR procedure for the proposed mediation and the Judge held that this contractual reference incorporated sufficient certainty to be capable of being enforced.
These four cases show, I submit, clearly the developing line of a English judicial thinking which underlay the introduction of CPR itself and, perhaps painfully (at least for Railtrack), demonstrated that ADR (whether meaning only mediation or otherwise) is now an essential part of the English judicial system and will be used, perhaps even forcefully, to reduce the unnecessary expenditure of Court resources in cases which are capable of more effective and often dramatically cheaper and faster resolution than is available through litigation.
Current Problem Areas
Given space limitations, I will highlight only two matters connected with mediation which cause me concern. One of the great merits of mediation, possibly the overwhelming single merit, is its flexibility and complete adaptability to the facts of each individual dispute and to each individual set of disputing parties; this great advantage is under attack from two quarters: first, mediation and mediation training is beginning to show signs of becoming over-proceduralised and developing a rigidity which, in my opinion, will severely damage it. Second, perhaps inevitably the EU has started the process to regulate mediation and, although its initial intention appears to be to regulate the training and accreditation of professional mediators, it is a safe assumption that the EU will go further in due course. I see such regulation as being potentially disastrous.
Conclusion
I do not argue that everything concerning the English Courts and English mediation is perfect but, it is very evident, there has been in England a fundamental change in attitude towards litigation leading to greatly wider application of mediation even if the complete range of available ADR techniques has not yet been fully applied.
