Lord Neuberger's Keynote Address 'A View From On High' to the 2015 Civil Mediation Conference
June 3, 2015
Lord Neuberger, President of the Supreme Court, gave the keynote speech at the 2015 CMC Annual Conference on 12th May 2015.
He explained that, unlike today, when he was in practice at the Bar, mediation was virtually unheard of in the world of United Kingdom civil litigation. However, interestingly he observed that in the 11th century mediation was common in England, with the Church instructing all Christians to avoid litigation and threatening those who did not agree to mediate with excommunication. Lord Neuberger referred to research by Professor David Roebuck, who recorded that the days on which mediation could occur were also known as lovedays, and noted that medieval English judges often adjourned cases so that the parties could mediate a settlement.
Lord Neuberger spoke about the advantages of mediation over litigation. He noted that mediation is quicker, cheaper, less stressful and time-consuming than litigation. In addition it is more flexible in terms of potential outcomes and less likely to be harmful to the long term relationship between the parties. Furthermore it is conducted privately, under less pressure and in somewhat less artificial circumstances than a court hearing. He also set out that it is far more likely that both parties will emerge as "winners" or at least neither party will emerge as a disgruntled "loser".
However, Lord Neuberger considered that each of these advantages must be qualified by the words "but only provided that the mediation is successful". If a mediation does not work the proceedings will have cost more, taken more time and are more likely to cause serious damage to the relationship between the parties. (One may perhaps question whether it might take more time if the mediation runs concurrently within the litigation, and likewise, one may perhaps question whether a failed mediation or rather the litigation causes serious damage to the parties' relationship). He considered that a litigant who is rich or who wants to delay can use mediation cynically to put pressure on an opponent who is poor or in a hurry. Lord Neuberger also set out that parties to a settlement may retrospectively feel that they were "bounced" into what now appears to be an unsatisfactory settlement, when they should have had their day in court. He considered that a further disadvantage (admittedly perhaps a lawyer's point) is that if almost all cases settle and hardly any disputes go to court, the development of the law will be prejudiced. He stated that the right of access to courts is fundamental and must be available to all. Mediation must not be invoked and promoted as if it was always an improved substitute for litigation. His sixth and final disadvantage of mediation is that some people simply don't want to mediate.
However, Lord Neuberger considered that mediation's advantages are "so great and so important, particularly in the present time....". He set out that "in the context of increasingly expensive litigation, augmented court fees and substantial legal aid cuts, the relative cheapness of mediation (coupled with its speed) is, or at least should be, particularly attractive to ordinary people." He also recognised that the risks and disadvantages of mediation failure can be met with an answer which is both pragmatic and impressive, namely that the great majority of mediations are successful!
Whilst his predecessor, Lord Phillips, spoke unequivocally in favour of compulsory mediation when he was Lord Chief Justice, Lord Neuberger explained that he is a little more cautious but definitely inclines in favour of it in some types of case, namely smaller civil cases.
He spoke about encouraging mediation by getting parties to include compulsory mediation clauses in their contracts, just as may contracts have compulsory arbitration clauses. He specifically mentioned as examples Council or Housing Association tenancy agreements and standard form private sector tenancy agreements along with service charges.
He added as a "melancholy fact" that the legal profession's charges, the court system's procedures and government cuts and charges render it difficult if not impossible for many citizens to get access to the courts. In those circumstances, provided that its costs are proportionate to the issues involved, mediation appears in practice to be the only alternative.
The full text of Lord Neuberger's speech can be found at: https://www.supremecourt.uk/docs/speech-150512-civil-mediation-conference-2015.pdf
He explained that, unlike today, when he was in practice at the Bar, mediation was virtually unheard of in the world of United Kingdom civil litigation. However, interestingly he observed that in the 11th century mediation was common in England, with the Church instructing all Christians to avoid litigation and threatening those who did not agree to mediate with excommunication. Lord Neuberger referred to research by Professor David Roebuck, who recorded that the days on which mediation could occur were also known as lovedays, and noted that medieval English judges often adjourned cases so that the parties could mediate a settlement.
Lord Neuberger spoke about the advantages of mediation over litigation. He noted that mediation is quicker, cheaper, less stressful and time-consuming than litigation. In addition it is more flexible in terms of potential outcomes and less likely to be harmful to the long term relationship between the parties. Furthermore it is conducted privately, under less pressure and in somewhat less artificial circumstances than a court hearing. He also set out that it is far more likely that both parties will emerge as "winners" or at least neither party will emerge as a disgruntled "loser".
However, Lord Neuberger considered that each of these advantages must be qualified by the words "but only provided that the mediation is successful". If a mediation does not work the proceedings will have cost more, taken more time and are more likely to cause serious damage to the relationship between the parties. (One may perhaps question whether it might take more time if the mediation runs concurrently within the litigation, and likewise, one may perhaps question whether a failed mediation or rather the litigation causes serious damage to the parties' relationship). He considered that a litigant who is rich or who wants to delay can use mediation cynically to put pressure on an opponent who is poor or in a hurry. Lord Neuberger also set out that parties to a settlement may retrospectively feel that they were "bounced" into what now appears to be an unsatisfactory settlement, when they should have had their day in court. He considered that a further disadvantage (admittedly perhaps a lawyer's point) is that if almost all cases settle and hardly any disputes go to court, the development of the law will be prejudiced. He stated that the right of access to courts is fundamental and must be available to all. Mediation must not be invoked and promoted as if it was always an improved substitute for litigation. His sixth and final disadvantage of mediation is that some people simply don't want to mediate.
However, Lord Neuberger considered that mediation's advantages are "so great and so important, particularly in the present time....". He set out that "in the context of increasingly expensive litigation, augmented court fees and substantial legal aid cuts, the relative cheapness of mediation (coupled with its speed) is, or at least should be, particularly attractive to ordinary people." He also recognised that the risks and disadvantages of mediation failure can be met with an answer which is both pragmatic and impressive, namely that the great majority of mediations are successful!
Whilst his predecessor, Lord Phillips, spoke unequivocally in favour of compulsory mediation when he was Lord Chief Justice, Lord Neuberger explained that he is a little more cautious but definitely inclines in favour of it in some types of case, namely smaller civil cases.
He spoke about encouraging mediation by getting parties to include compulsory mediation clauses in their contracts, just as may contracts have compulsory arbitration clauses. He specifically mentioned as examples Council or Housing Association tenancy agreements and standard form private sector tenancy agreements along with service charges.
He added as a "melancholy fact" that the legal profession's charges, the court system's procedures and government cuts and charges render it difficult if not impossible for many citizens to get access to the courts. In those circumstances, provided that its costs are proportionate to the issues involved, mediation appears in practice to be the only alternative.
The full text of Lord Neuberger's speech can be found at: https://www.supremecourt.uk/docs/speech-150512-civil-mediation-conference-2015.pdf
Posted by Stephen Wood. Posted In : 2015 CMC Annual Conference
