LORD WOOLF issued his report on Access to Justice eight years ago. He had just spent two years listening to those who told him of the woes of our civil justice system and how things might be done better. His report contained a framework for the future, not a blueprint. He said that our attitudes must alter. People should be looking for a sensible way of resolving their disputes, not a battleground on which to fight them. He wrote of pre-action protocols, of a new breed of procedural judge, of a single code, of serious investment in IT in support of civil justice and of a costs regime that should, wherever possible, be certain and predictable. And he also wrote of the need for us all to learn much more about alternative methods of dispute resolution.
The Judicial Studies Board ran excellent training courses about the new regime. It was there that I watched a mediation for the first time. A video showed the mediator meeting the parties round a table. Their lawyers were there, and at the outset feelings ran high. After the opening statements, preferably made by the parties themselves, we saw them going to their separate rooms. The mediator then spent time with each, exploring what they were really looking or hoping for, and the scope for moving towards the other side’s position. The mediator must enjoy the absolute trust of both sides. And they must know that everything they tell him or her is confidential unless they expressly permit it to be revealed. Eventually we watched the ice-pack cracking, and then melting, and the parties shaking hands over a completed agreement. Perhaps they had a drink together before they went home.
There are now many flowers in the mediation garden. A Central Mediation Council gives guidance on standards and good practice and proselytises the virtues of mediation from an independent standpoint. There are training courses for mediators, and lists of accredited mediators (and their fees), from which the parties may take their pick. Courts are experimenting with different types of court-annexed mediation schemes. Some of the success rates are impressive.
A new book by Freddie Strasser and Paul Randolph provides a fascinating insight into one corner of the new market. One of the authors is a psychotherapist and the other a barrister of great practical wisdom. Between them they show us what happens at a mediation course at the School of Psychotherapy and Counselling at Regent’s College, Central London. The knowhow of the therapist is there to tease out what the parties want at the end of the process of conflict and reconciliation. Is it an apology? Is it money? Is it a sense of victory? Is it a continuing relationship following an honourable draw? The knowhow of the lawyer provides a practical framework in which the parties may move towards settlement.
In his foreword Lord Slynn of Hadley advises us to read Part 1 of the book at least twice. It is called “Principles and Theories of a Psychological Approach to Mediation”. We would all be much better at our jobs as lawyers — and judges — if we read it at least ten times. Perhaps we would then achieve a clearer understanding of what litigants are really looking for when they entrust their problems into our hands.
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Mediation: A Psychological Insight into Conflict Resolution, by Freddie Strasser and Paul Randolph (Continuum, 2004)
The author is Vice-President of the Court of Appeal (Civil Division)