There is an increasing pressure from the Courts and the Ministry of Justice for parties to use Alternative Dispute Resolution, or Mediation rather than taking their disputes to trial. This trend predates the Jackson Report, but was certainly encouraged by it.
Personally, I am studying mediation so as to be able to offer clients a complete service to meet their needs. However, some claims-handlers regard the spread of mediation as a threat to their trade.
I can see that there are advantages, not just in saving costs, which is a desirable aim, but not one that I am convinced will be achieved: I can see mediation becoming more professionalised and more expensive. We can only wait and see.
The other benefit of mediation is that it can lead to a win-win result rather than the win-lose which can be the only outcome of a traditional trial. Indeed the trial process tends to polarise feelings, often leaving the loser feeling cheated, and even the winner less than satisfied if he has not got as much compensation as he had expected, or if his position was not fully vindicated by the judge’s remarks.
It is claimed that mediation is more likely than a trial to lead to a resolution of the underlying conflict, by helping both parties to see different points of view, to acknowledge their own failings, to learn from the experience and to consider the way forward to the future rather than dwelling on the past.
I do not disagree with any of the aims of the mediation approach, nor am I totally pessimistic about its chances of achieving them in some cases. I am, however, concerned that parties, and the Courts, may be tempted to go down this route where it is not truly appropriate.
Mediation is based on the assumption that there is no absolute “Right” and “Wrong” but that both parties need to be prepared to “give” to some extent. This is probably true a lot of the time. There are however many cases where this is not so, as I have seen in many years of handling liability claims.
• There are many claims which are totally fraudulent, and many more where there has been a considerable amount of exaggeration or distortion of the truth. I would not want to reward, even to a limited extent, claimants who practice such deception.
• There are also many cases where, although no fraud is involved, the defendant has done nothing wrong: the claimant simply assumes that whatever misfortune you may encounter, there is always somebody else who will have to compensate you. I do not wish to encourage this attitude, or to penalise innocent employers or other potential compensators.
On the other hand, I am also aware of claims I have dealt with where mediation would have been a far better way than that which was actually chosen at the time.
These come into two categories:
1. Those where the claimant was not primarily seeking compensation, but had found a claim was the only way to be heard or to obtain the fact or a sensible explanation for what had happened. I can think of cases where parents wanted to know how their children had come to be injured in school, and had been met with either silence or unacceptable explanations.
2. Those where there is an ongoing problem which needs to be addresses. This could be anything from flooding, to bullying. Paying the claim might be an incentive for the defendant to prevent a recurrence, but it is uncertain.
I do not feel threatened by mediation, and will welcome the chance to help clients find real and effective solutions to their problems – where this is the appropriate way.
But I hope the concept of Right and Wrong does not disappear from our system of justice altogether.