Mediation ‘is not about just settlement’, said Professor Dame Hazel Genn earlier this month. ‘It is just about settlement.’
This pithy attack on received wisdom aptly summed up three excoriating Hamlyn lectures in which the professor of socio-legal studies at University College London stripped away some of the comfortable assumptions that have surrounded English civil justice for more than a decade.
No wonder one of her colleagues, after hearing her first talk, expressed surprise at such forthright remarks from someone who normally steers clear of ‘political’ comments. Dame Hazel’s lectures attacked what she saw as the downgrading of civil justice, the degradation of civil court facilities and the diversion of cases to private dispute resolution.
She recalled a speech in 2000 by Baroness Scotland in which the Attorney General - at that time a minister in the Lord Chancellor’s department - had enthusiastically promoted the benefits of alternative dispute resolution (ADR). Judges should not be asking whether a case was suitable for diversion to ADR, Lady Scotland had said - the question they should be asking was why the case was thought suitable for adjudication.
Perhaps everything can be mediated, Dame Hazel commented tartly, and the courts can all become pubs and restaurants. But why would any defendant mediate if there were no courts to enforce a settlement or impose a ruling?
It was all the fault of Lord Woolf, Dame Hazel suggested. Supporters of ADR had enjoyed little success, even in the commercial field, until the then Master of the Rolls published his much-heralded review of civil justice in 1996.
As part of his research, Lord Woolf had travelled to the US, Canada and Australia, becoming convinced of the value of mediation as an essential element in reforming justice. The fundamental premise of his interim report, said Dame Hazel, was that all cases should be settled as soon as possible, and ADR should be tried both before and after the issue of proceedings in order to achieve this.
His final report was even firmer. It led, in turn, to the new Civil Procedure Rules – the so-called Woolf reforms. Their introduction 10 years ago was the single greatest change to civil procedure in England and Wales since 1883.
Lord Woolf had called his report Access to Justice. ‘Some commentators have argued that the purpose of the reforms was to provide more access and less justice,’ Dame Hazel pointedly observed. But modern civil justice reform was neither about more access nor more justice, she maintained. It was simply about diversion.‘The push for less law is supported by the growing ADR profession which professes a mission to rid society of conflict but which is more interested in the profits to be made from large commercial dispute settlement than the small change of the county courts,’ she said.
Not that she was totally opposed to ADR. It was ‘an important supplement to courts that should be made available to anyone contemplating litigation’. But it had been used as an excuse to save public money.
In response to greater spending on the criminal courts, ministers had looked for savings in civil justice. That had been achieved by ‘diversion of cases away from public courts and into private dispute resolution, stripping down court procedure and making litigants pay for court buildings, judges and the administration through full-cost fee-recovery’.
But court-users had not rushed to embrace ADR in the five years following Access to Justice. Like the horse that wouldn’t drink, litigants ‘mulishly’ rejected the courts’ encouragement.
‘It was therefore time for the judicial big guns to step in. Beginning in 2002, a series of landmark decisions were handed down from the Court of Appeal and High Court underlining the importance of ADR.’ In one case, a winning party that had refused to consider mediation was refused its costs.
‘The high-water mark in the line of cases came in May 2003 when the High Court decided that the fact that a case involved a point of law did not make it inherently unsuitable for mediation, a decision that was warmly welcomed by mediation organisations.’
The tide turned in 2004, Dame Hazel said, when the Court of Appeal held in a case called Halsey that compulsory ADR would amount to an unacceptable constraint on the right of access to the court, breaching the right to a fair trial. But the court’s comments on compulsory ADR were non-binding obiter dicta, according to the Master of the Rolls. ‘Despite the Halsey decision it is at least strongly arguable that the court retains a jurisdiction to require parties to enter into mediation,’ Sir Anthony Clarke told a conference in May.
At a conference this month organised by the Oxford University law faculty and sponsored by Herbert Smith, Sir Anthony found himself listening to another attack on the Woolf reforms – this time from Professor Michael Zander QC, a consistent critic from the start. Far from costs having been reduced by the reforms, said Zander, they had gone up. And there had been a significant increase in inconsistent judicial decision-making.
Lord Woolf seemed to agree. ‘The situation in regard to costs is worrying,’ he said in a message to the conference. ‘Are we unnecessarily restricting the discretion of the case-managing judge? Are we giving unnecessary scope to tactical advocacy?’
Though far from perfect, he still regarded the Civil Procedure Rules as ‘fit for purpose’. Dame Hazel Genn, by contrast, believes we have neglected the role of judicial decision-making in supporting social and economic order. Her Hamlyn lectures will be published by Cambridge University Press in the spring. I can’t wait for Lord Woolf’s review.
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