Time was that, in the UK at least, the legal establishment regarded mediation as a rather fringe activity. However, things are changing. Whilst in the past there may have been relatively little incentive for lawyers to mediate rather than litigate, I have no doubt that the open-minded and progressive majority within the UK legal community will, for all the right reasons, recognise the significance of some recent developments, embrace change and treat mediation as a key element of the dispute resolution process.
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In the past two years or so there have been two very important High Court cases, Blackpool (2) and Ohpen (3)(4). Subsequently the sentiments expressed in these two cases have been echoed in a family case RE B. In recent weeks there have been important pronouncements made by the UK Justice Secretary, the Right Hon Dominic Raab in respect of a family mediation and in respect of civil mediation by one of the most senior judges in England and Wales, the Master of the Rolls, Sir Geoffrey Vos.
In the Blackpool case, solicitors acting for a victim who was ultimately found to have been sexually abused by an employee in a position of trust had their initial and subsequently repeated requests for mediation firmly rebuffed by the defendant’s solicitors who consistently maintained their clients had a good defence. Maintaining the same stance, the defendant’s solicitors subsequently declined both to enter into without prejudice negotiations and to accept a settlement offer that was several thousand pounds less than the figure ultimately awarded by the court. When the trial judge learned of what had been going on he was decidedly unimpressed and not only were the defendant and its lawyers very heavily criticised but they were very strongly penalised in costs. The judge made it abundantly clear that “having a good defence” was not a good enough reason to refuse a genuine request for mediation. (5)
In Ohpen, the claimant, a party to a very substantial commercial contract, sued for what was termed a fundamental breach. The contract in question included a clause requiring disputes to be referred to mediation. The claimant alleged that because of the “fundamental breach” along with the rest of the contract this clause was null and void. Following a detailed, careful review the judge hearing the case strongly rejected this contention and made it abundantly clear that because the contractual mediation clause was clearly drafted and not open to misinterpretation, in declining to mediate the claimant and by implication its lawyers, had erred quite badly.
These are not cases in which an understandably concerned judge made a few “end of judgment” remarks about unnecessarily incurred costs and briefly extolled the virtues of mediation. Rather, they are detailed, thoughtful judgments that make it abundantly clear that mediation is not something to be trifled with or regarded as some sort of optional extra. Litigants and their lawyers have been clearly warned and it is absolutely clear from these two cases that unless there is a VERY good reason, mediation has to be the first port of call. Lawyers in particular should be mindful because they themselves stand to be penalised in costs and their professional reputations could be at stake.
Towards the end of last year, not dissimilar comments were made in the widely noted family case, Re B (6).
In a recent UK Sunday Times article (7) which focused on child related disputes, a source close to the UK Justice Secretary who is also the UK’S Deputy Prime Minister categorically affirmed that “He [the Justice Secretary] is keen to make mediation the default. He is looking at incentives and disincentives to encourage parents to take that route”. Additionally, the same source stated “of the 50% of family cases that do not involve domestic abuse he is clear that they should be resolveable without going to court and he has commissioned proposals as to how he can make that happen.”
Whilst the Justice Secretary has been focused on family disputes, the Master of the Rolls has been considering the future of the UK’s civil justice system and as part of his overall strategy the UK Courts & Tribunals Service is already in the throes of devising an online system for civil claims. As reported by the Law Society Gazette in October 2021(8), Sir Geoffrey envisages “a digital triage portal for all civil justice claims that could help England and Wales become the ‘first major economy’ to make the wholesale transition to online dispute resolution.” In so stating he accepts that Covid-19 ‘will be seen to have changed our justice system forever’ and emphasises “resolution” rather than “dispute”.
Subsequently, when addressing the 2021 Civil Mediation Council conference (9) Sir Geoffrey mentioned the intention to implement an online bot, a software application that runs automated tasks (scripts) over the Internet, to resolve small claims. His aim is to clear the existing backlog of cases and then crucially to allow mediation to be part of the resolution process for higher value claims with the ultimate intention of making the court system more efficient. The effect of these changes is intended to be to make mediation an integral part of the resolution process and cease the use of the term alternative resolution.
I am not aware that when making their recent pronouncements either the Justice Secretary or the Master of the Rolls specifically had the Blackpool and Ohpen cases in mind. However, it does seem to me that given the sequence of recent very authoritative decisions and pronouncements by senior members of the judiciary and the deputy prime minister, in the best possible sense “the times really are a changing” and lawyers and litigants who failed to heed them could routinely find themselves the subject of the strong criticism and costs penalties identified in the Blackpool case. The writing may well be “on the wall”.
- With a nod to Bob Dylan. All the italics and underlining are inserted by me.
- DSN -v- Blackpool Football Club  EWHC 670 QB (Blackpool)
- Ohpen Operations UK Limited & Invesco Fund Managers Limited.  EWHC 2246 (TCC) (Ohpen)
- Two earlier ASM blogs on these cases can be found on the ASM website at https://bit.ly/3glrOvc https://bit.ly/3oBGNpx and https://bit.ly/3ckdeTM
- A key extract from the Blackpool case- “The reasons given for refusing to engage in mediation were inadequate. They were, simply, and repeatedly, that the Defendant “continues to believe that it has a strong defence”. No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution. Experience has shown that disputes may often be resolved in a way satisfactory to all parties, including parties who find themselves able to resolve claims against them which they consider not to be well founded. Settlement allows solutions which are potentially limitless in their ingenuity and flexibility, and they do not necessarily require any admission of liability, or even a payment of money.”
- Re B (A Child) (Unnecessary Private Law Applications), Re  EWFC B44 (25 September 2020 http://www.bailii.org/ew/cases/EWFC/OJ/2020/B44.html
- Sunday Times 7th November 2021
- Law Society Gazette 21st October 2021 https://bit.ly/3nkXINN
- 10th November 2021
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.