AT ASSISE D’HERITAGE
THURSDAY 9TH SEPTEMBER 2004
If I may now revert to the second language of the Court, I should like
once more to take advantage of the presence in one place of the bulk of the legal
profession, to say a few words at the opening of the legal year. As I survey the
ranks of the profession in 2004, and remind myself of the awesome value of the chargeable
time that is being involuntarily sacrificed, I shall be relatively brief.
There can be no-one in the Island who is unaware of the fact that we
have celebrated this year the 800th anniversary of 1204 when the special constitutional
status of the Channel Islands came into being. By chance I found myself at the Abbey
of Fontevraud during August where a commemoration of another 800th anniversary was
taking place, that of the death of Eleanor of Aquitaine who is buried at Fontevraud
with her husband, King Henry II. There is perhaps a certain melancholy appropriateness
about the conjunction of dates, in that it was Eleanor’s marriage to Henry which
brought the Angevin empire to the height of its power. She died on 1st April 1204
mercifully just before the fall of Rouen and the final collapse of her son, John’s,
authority in Normandy. All that, however, is history, and although it is important
to understand our origins and to respect our legal heritage, it is about the future
that I wish to speak.
On 8th June this year the Royal Court made a rule which has great potential
significance to the resolution of disputes in Jersey. The Royal Court (Amendment
No 20) Rules empower the Court to direct that proceedings be stayed for such period
as the Court thinks fit to enable the parties to try to settle the dispute by Alternative
Dispute Resolution, i.e. mediation. Mediation is not of course a new idea. Many
countries, but in particular, the USA, Australia, and New Zealand, introduced mediation
very many years ago. The UK and other European countries were slow to take this
particular bait, but all have now, to a greater or lesser extent, embraced this
alternative means of settling disputes between two or more parties. Jersey can,
therefore, take advantage of the experience of other places and mould a system which
is appropriate to a small but vigorous jurisdiction, where by long tradition individuals
have not been slow to resort to litigation.
I think I can claim without fear of contradiction that the pilot project
in the Petty Debts Court was a great success; mediation is now an established part
of the court process, and it enables a substantial number of disputes over small
sums to be resolved at minimal expense to the parties.
A number of members of the Bar have become accredited mediators, but
mediation in the Royal Court has yet to establish itself and to prove its worth.
It does demand a change in culture. It places the responsibility for decision making
in the context of settling disputes rather more clearly with the clients, i.e. the
disputing parties. They have to decide what they want to achieve, which may not
be money, nor the last drop of blood to which they may be legally entitled. They
may want an apology, or a recognition that they have been wronged or hurt in some
way. Mediation will often involve lawyers but, if it is to be successful, it requires
that lawyers should adapt their thinking to the different imperatives of a mediated
What is important is that a reference to mediation should not become
another weapon in the litigation lawyer’s armoury; that it should not become a time-wasting
and expensive process where there is no serious intent to resolve the dispute, but
merely a wish to put pressure on the other side, or to flush out the motives or
thinking of the opponent to gain a tactical advantage at trial.
The courts in England have already made it clear that they will make
costs orders in favour of the losing party at trial if there is evidence that the
winning party has behaved unreasonably or uncooperatively in the context of a mediation.
Such orders in Jersey could be made on an indemnity basis.
The lawyer of course retains a duty to do what is best for his or her
client, but that duty remains qualified, as it always has been, by the duty to the
Court. Where the Court has stayed an action so that it can be referred to mediation,
the Court is entitled to expect that proper and diligent efforts will be made to
resolve the dispute in that way.
I believe that mediation has much potential, not merely in the context
of disputes between private citizens, but also in some respects where the citizen
is in conflict with the state. In many disputes with a committee or other public
authority, there will be elements of the dispute (and occasionally the whole of
the dispute) which do not admit of mediation. If the Environment and Public Services
Committee, by way of example, is under a duty in accordance with the Island Plan
to refuse permission for a particular development, and the prospective developer
is aggrieved, there is no point in contemplating mediation. The Committee has nothing
to give; it is under a duty to act in a certain way, and that is that. But if the
dispute concerns whether a wall should be built at a height of ten feet or six feet,
or in granite as opposed to brick, the decision involves an element of subjectivity,
i.e. an appreciation of the aesthetic qualities of the different options. In such
circumstances, it seems to me, there is room for manoeuvre, and scope for a mediation.
One of the definitions of ‘mediate’ offered by the OED is ‘to settle or sooth a
dispute by mediation’. Even if it is not possible to settle every dispute in this
way, the opportunity to gain a greater understanding of the other party’s point
of view can soothe relations between an aggrieved individual and the department
in question, and that is an advantage in itself.
I hope that the profession and the judges can work together in the
coming year to shape a mediation culture that is appropriate for the Island.
In the meantime I renew my thanks to the members of the profession
for the continuing, and valuable contributions which they make to the cause of justice
by offering legal aid and to persons in need in accordance with the oath they have