Use the force

The Woolf report has been instrumental in encouraging judicial support for alternative dispute resolution in general and mediation in particular. There has never been, however, any attempt to compel parties to mediate. Case law too has followed this Woolf line. Halsey v Milton Keynes NHS Trust Limited [2004] EWCA Civ 576 established the view both that lawyers who failed to consider alternative dispute resolution methods might be liable for negligence, and that parties that fail to adequately consider the possibility of mediation might suffer cost sanctions. Indeed, CPR 44.5(3)(a)(ii) requires the court with regard to costs to examine 'the efforts made, if any, before and during the proceedings in order to try to resolve the dispute'.

This is further supported by the various pre-action protocols. Thus, parties and their professional advisers may legitimately be called upon to give an account of what steps they took to resolve the dispute without recourse to litigation. If the steps taken are deemed to be half-hearted or inadequate, then the court has the option of penalising the offending party with cost sanctions.

While the courts have generally encouraged the use of mediation, they have stopped short of advocating the introduction of compulsory mediation. This has been largely due to worries over any potential breach of article 6 rights granted under the 1950 European Convention on Human Rights enshrined in English law since the introduction of the Human Rights Act 1998. This line of judicial caution has been echoed in Sir Rupert Jackson's recent review of civil costs where he states: 'In spite of the considerable benefits which mediation brings in appropriate cases, I do not believe that parties should ever be compelled to mediate.'

A strong argument

However, the landscape of mediation may have been significantly changed with regards to enforced mediation by the recent decision in Rosalba Alassini (Environment and Consumers C-317/08 to C-320/08). While not in any way binding on courts in England and Wales, it nonetheless is a decision that provides a strongly reasoned argument in favour of such a measure.

The facts are concerned with the rather mundane topic of Directive 2002/22/EC dealing with the 'universal service and users' rights relating to electronic communications networks and services' and, therefore, are of limited interest. The underlying principle and reasoning behind the decision is, however, important.

Advocate General Kokott describes how the mandatory Italian out-of-court mediation scheme was pursuing 'legitimate objectives in the general interest' (more cost-effective and quicker dispute resolution) and that a 'merely optional [ADR or mediation procedure] is not as efficient as a mandatory one that must be conducted before any legal action can be brought'. To support this position, the Advocate General made reference to the decision in Dokter v Minister van Landbouw, Natuur en Voedselkwaliteit where it was argued that fundamental rights can be restricted for the sake of the general interest as long as it is proportionate and reasonable to do so.

The Advocate General also concluded that 'mandatory dispute resolution procedure without which judicial proceedings may not be brought does not constitute a disproportionate infringement upon the right to effective judicial protection. [These provisions] constitute a minor infringement upon the right to enforcement by the courts that is outweighed by the opportunity to end the dispute quickly and inexpensively.'

Enforced mediation therefore does not appear to breach fundamental human rights per se '“ at least in the mind of a number of leading European lawyers. It is also in keeping with the balanced view of individual article 6 rights outlined in Gambazzi v Daimler Chrysler Canada Inc [2002] 1 AC 1 where a universal and indiscriminate right to litigate was not recognised when weighed against the goals of a speedy, proportionate resolution. It seems, perhaps, that our judiciary are keener on a strict, possibly literal interpretation of 'human rights'. This is arguably because of the relative unfamiliarity of these abstract notions to lawyers trained in the more empirical common law tradition '“ whereas in many civil law jurisdictions they are clearly prepared to take a broader approach.

Focusing on negotiation

What, then, might be the practical implications of such a measure? It would hopefully serve to focus minds more than is typically the case now on resolving the dispute through negotiation and compromise. This poses a challenge to many practitioners in managing their client's expectations both as to the way in which the case was run and the outcomes that they might legitimately hope to achieve. It might also require the development of new competences among some lawyers, focusing more on 'soft skills' such as communication and problem-solving rather than on evidence and argumentation.

To some degree this measure would continue some of the trends started by Woolf. The encouragement of any methods that reduce litigation must be welcomed. More importantly, such a move might encourage a gradual '“ and doubtless slow '“ cultural shift where litigation is viewed as the exception rather than the rule, thereby creating what might be called a more 'mature society'.

At its most basic, though, the pressure to increase the speed and reduce the costs of dispute resolution, both for political and commercial reasons, is likely to continue. As long as the possibility of litigation at a later stage is not ruled out there seems no compelling reason why parties cannot be told to first 'go away and talk about it'.

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