Judge for yourself

“This may sound like a dirty word, but do you have any idea of the costs involved and have you considered mediation?” District judge Monty Trent, the newly elected president of the Association of HM District Judges, finishes a case management call as his assistant lets me into his room. Before we have even started our conversation, these few overheard words set the scene: too many disputes still end up in court instead of being negotiated, and more should be done to steer litigants towards mediation or conciliation earlier on.

“We could use in civil cases some of the techniques that we use in the family field, particularly neutral evaluation. Ninety per cent of defended cases are eventually compromised before trial – my concern is that they are compromised too late in the day, virtually at the door of the court,” he says. “I feel very strongly that the courts are there to help the parties compromise much sooner – before they’ve incurred costs.”

Alternative dispute resolution was the main theme underpinning the Woolf reforms. There are numerous daily mediation success stories, but many district judges are still concerned that they are seeing too many cases that should have settled earlier in the process.

Can they really move the agenda forward to a situation where a conciliatory approach becomes an accepted norm?

DJ Trent thinks so. If family procedure is anything to go by, there is hope for a mindset change in civil disputes. The latest family law protocols place great emphasis on attempts at mediation and have given judges a much more inquisitorial role. This approach could serve as a model for the resolution of civil claims.

In general family matters, including divorce, parties are encouraged to resolve issues and the judge will only intervene if he identifies an abusive situation, which he would have to investigate, or where arrangements involving children need to be approved.

In ancillary relief proceedings, a couple of hearings at the early stage of the process are designed to encourage conciliation and negotiation. It is also possible for the judge to facilitate an agreed outcome as a neutral evaluator. “If the parties get stuck on any point or want guidance on the likely parameters of the orders the court is going to make, they can invite the judge to express a view as to the likely outcome of the case,” explains Monty Trent. “It’s nothing more than an opinion but often it is persuasive because judges are accepted as respected neutral facilitators.”

Family business

Where the parties avail themselves of this option, the judge will be disqualified from hearing the case if the dispute doesn’t settle. “We know too much about the case, we know the offers the parties have made, and we have expressed an opinion, so it would not be proper at all for us to proceed. So we hand all the paperwork back and another judge will take over the case.”

The concept should be familiar. A fair number of divorce lawyers now offer collaborative law as an alternative to a fight in court. If they fail to reach agreement, the case will be passed to other lawyers who will pursue the litigious route.

It may be that one day the family courts will be entirely inquisitorial, but Monty Trent points out that there are limitations to the process. “There’s great interest in this but you need to proceed very cautiously because some matters must still be investigated, such as domestic violence and abusive relationships, which have consequences for the family above the outcome of their own issues.”

Small claims hearings have been going the same way for years. Decisions made by the judge in his judicial capacity are based on black letter law but the outcome – a ruling – may not be much use to the successful claimant. As a mediator or evaluator, on the other hand, the judge can make practical suggestions that will be more readily workable. For instance, in a claim for breach of contract, a judgment in favour of the claimant will be of little use if the defendant is penniless; in mediation it will be possible to work out an arrangement so that the work can be done and payment can be released gradually.

Then there are the savings. Money is one of them as the parties don’t pay the listing fee, which is now quite high. They also don’t have to expend the emotional energy needed to devote to fighting a small claim – which can be up to £5,000 – and the enormous amount of management time. Not to mention the savings for the court. “If you can resolve small claims without trial, then the court can spend less time on dealing with relatively minor claims and more time on more valuable work, particularly family and housing law which require a little bit more priority than perhaps a dispute over a dry cleaning job that has gone wrong,” Monty Trent points out.

The question is more complicated for bigger cases, where judges have to weigh the advantages of a conciliation or dispute resolution appointment against the cost of bringing lawyers into court to talk to them. “In a big case, by the time you’ve had a one-hour hearing you’re in four figure sums of money, so it’s very important not to waste that money by bringing people in unnecessarily,” says DJ Trent. “So there has to be sensitivity about this, but there should also be flexibility for the court to recognise cases that have either been delayed or bogged down in procedural complexities and where people can’t see the wood for the trees. They get involved in so many satellite wars outside the scope of the main issue that they can’t recognise that their clients are simply haemorrhaging costs rather than spending money wisely on the preparation of the case.”

In such cases, what Monty Trent and many of his colleagues do is either bring the parties in for a case management conference or make an order directing their attention to mediation. Any party resisting mediation in these circumstances will be expected to justify their decision.

Unlocking the situation

Of course, what many litigants fear is that agreeing to mediation signals a lack of confidence in their own case. Not to mention that many claimants start proceedings in the first place because they believe their case is just so important or involves such colossal sums that it has to go to court.

“Sometimes a little nudge from the judge is all the parties need to realise there is another way of solving the problem,” replies DJ Trent. “Opening negotiations can be a bit like Gunfight at the OK Corral, where nobody wants to make the first move in case it’s seen as a sign of weakness. But, if this first move is made by the court, which is neutral, it suddenly becomes quite acceptable and they will be prepared to explore the option.”

But there are still obstacles to a wider use of conciliated outcomes. The major problem seems to be that most lawyers are reluctant to get into negotiation or mediation until they know everything about the case. “They want all the facts on the table – certainly all the evidence established – before they feel they can dare try to resolve matters,” Monty Trent comments.

He also muses that lawyers tend to be a bit like Victorian doctors. “They have the magic bullet that resolves disputes: they’ve been using this method called ‘trial’ for centuries, so when somebody comes along and says they’ve got this alternative method that can be just as effective and a lot cheaper, they’re reluctant.”

Possibly the biggest obstacle is the lack of affordable mediation schemes available. There is the National Mediation Helpline scheme, operated on behalf of the Ministry of Justice in conjunction with the Civil Mediation Council, as well as the hugely successful small claims mediation scheme, which has an 80 per cent success rate. Some courts also have their own schemes, but there is still a shortage of proximity schemes.

It prompted a pilot project designed to equip every court with its own mediation scheme or relationship with local mediators. But, despite successes in places such as Central London, Manchester and Exeter, the lack of resources combined with the lack of take up by the profession has meant that the scheme failed to roll out nationwide.

Monty Trent’s court was particularly lucky. With its City location, getting in touch with mediation partners was quite straightforward. The City Disputes Panel agreed to be their administrators, they use free accommodation at the International Dispute Resolution Centre, and they also negotiated with organisations such as the London Court of International Arbitration (LCIA), In Place of Strife, the Chartered Institute of Arbitrators, and CEDR to let the court use their mediators for a knock-down fee. “If we’d had to pay full rates we wouldn’t have been able to do it,” says Monty Trent, “but it didn’t cost us a bean.” As it is, litigants coming to the Mayor’s and City of London Court only need fork out £375 plus VAT to have their dispute looked at by some of the country’s most experienced mediators. The case will remain on the court’s book, with a schedule drawn up all the way to trial should mediation fail. All that happens is that the case is put on ice for six weeks while the parties explore mediation.

For such a strong advocate of mediation, DJ Trent remains opposed to compulsory ADR. “I don’t support compulsory mediation and neither do most judges,” he says. “All we can do is encourage.”

Previous Masters of the Rolls – notably Lord Clarke and Lord Phillips – have suggested the courts should take a tougher line with parties that have unjustifiably resisted mediation, but, without a green light from the Court of Appeal, all judges can do is try to twist litigants’ arms a bit harder.

Monty Trent certainly puts a powerful case for ADR, but can he realistically achieve anything tangible during his one-year tenure?

District judges are at the coalface of civil justice. The county courts are where most everyday disputes end up and there is strong momentum among district judges to push for ADR techniques. But more resources are needed so that mediation is available on tap and can be readily offered as an alternative to using the courts.

The Association of HM District Judges has gently been gathering speed in recent years and it now has the ear of senior members of the judiciary. With greater pressure on the justice budget and an election around the corner, this could just be the year that mediation properly starts taking off.

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