BAILIFF’S SPEECH

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 settlement.

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 just taken.