Bailiff’s Speech at Launch of Mediation Rule

Tuesday 8^th June 2004

When in prehistoric times the male cave dweller at La Cotte fell into serious dispute with his neighbours or his woman, he would customarily set about them or her with his club until, after much spilling of blood and breaking of bones, the dispute was, after a fashion, resolved. Later, in early mediaeval times, communities invented trial by battle or trial by ordeal as alternative means of resolving disputes. The underlying principle was still that might was right or alternatively that physical prowess carried the right to moral and legal supremacy. Then came the dawn of civilization, and increasingly people resorted to courts for the resolution of their arguments.

Over the last five or six centuries, the rule of law has developed in western Europe, and most countries, including Jersey, now have relatively sophisticated judicial systems which are capable of dealing with the varied and sometimes complicated commercial disputes which come before the courts. This sophisticated machinery has however become increasingly expensive and time-consuming to operate. The process of litigation has bred its own complexities and has led to a state of affairs where access to justice in the civil courts, while theoretically open to all, has in practice become all but confined to the wealthy and to those able to obtain legal aid or some other assistance to meet their legal costs. In England, where access to legal aid is perhaps more restricted than in Jersey, there has been a significant increase in the number of litigants in person.

Against this unhappy and, I think, unacceptable background, there have been a number of important changes in practice and procedure in Jersey. In order to set the scene for the new Royal Court Rule on mediation, it is worth while sketching them in.

First, influenced by an important judgment of the Court of Appeal in re Esteem, the Royal Court has been encouraging an acceptance of the principle that the legal process has an overriding objective of bringing proceedings to trial promptly and at a level of cost commensurate with the sum in dispute. Noises have been made, although as yet the axe has only rarely fallen, about the power of the court to order advocates personally to pay any costs incurred in time wasting interlocutory games.

Secondly, the Royal Court has asserted the right to be more pro-active in the management of civil litigation. No longer is it to be left to the parties, or to their legal advisers, to determine the pace at which the litigation progresses. In November 2001, a new Rule of Court was adopted obliging the parties, once pleadings have been completed, to apply to the Master for a directions hearing. The Master has been given wide powers to issue directions and those powers will be employed with increasing vigour so as to achieve, in due course, the target of bringing most civil litigation to a conclusion within twelve months.

Thirdly, the procedure for bringing on for hearing appeals against administrative decisions of States committees has been streamlined. Appeals are now generally heard within four months of the notice of appeal being filed, and the costs of such appeals have been significantly reduced.

These changes are all consistent with the vision of the Jersey Legal Information Board which is to see Jersey’s legal system recognised as the global best for a small jurisdiction, and with one of the strategic aims of JLIB which is to make the law and legal processes more accessible to the public.

The Courts will remain the institutions by which disputes are ultimately resolved. A great many disputes can however be resolved by other means, the most important of which is mediation. This presentation is taking place to mark the coming into force today of the Royal Court(Amendment No. 20) Rules 2004. These rules introduce a new power to enable 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).

Why has this rule been introduced? The answer to that question is that experience in other countries has shown that mediation can often leave the parties in a better position than litigation. First, if a dispute can be mediated at a relatively early stage, there can be a significant saving in cost to the parties. Secondly, a dispute settled confrontationally through the courts will often have a bruising effect upon the parties. There is always a loser, and sometimes there is no real winner. A mediated settlement, while not necessarily leading to total satisfaction on both sides, can enable the parties better to understand the other’s point of view and occasionally to offer or to accept an apology. Particularly in a small community, where trading and even personal relationships between the litigating parties may continue, the ability to settle a disagreement in private without creating lasting wounds is, in my view, an important positive factor in favour of mediation.

This has certainly been the local experience in the context of small claims. A pilot project was launched by JLIB in the Petty Debts Court some two and a half years ago in the aftermath of a working visit to the Subordinate Courts of Singapore in 2001. The project has showed that between 50 to 60 percent of claims could be settled by mediation, to the great advantage of the parties. This process is now embodied in the Petty Debts Court rules 2004 which came into force on 1st June and a practice direction to be made pursuant to the rules. The mediation process will now affect all claims within the jurisdiction of the Petty Debts Court, that is claims for £10,000 or less.

Court-directed mediation will now be available also in the Royal Court, not only in monetary claims but in all other types of civil litigation. Specific provision will soon be included in the Matrimonial Causes Rules. Now I accept, as do all the judges of the Royal Court, that mediation is not a panacea. It will not be suitable for all disputes. Furthermore, it should not be allowed to become just another part of the interlocutory process, adding inevitably to the cost of the proceedings. It may be unusual for mediation to be appropriate at a stage when all is set for argument before the court. The Master will, however, be considering as a matter of course after the close of pleadings whether mediation could be a sensible option, and may well invite comment from counsel. I am of course speaking of court-directed mediation, but the hope of JLIB is that a change of culture will be brought about. A modest change of culture would involve the legal profession itself considering mediation before instituting proceedings if negotiations run into the sand. A real change of culture would be brought about – and this may be an uncomfortable notion for the legal profession – if parties in dispute can themselves refer their differences to mediation without even consulting a lawyer. Some of the disputes between neighbours which can seriously affect the quality of life, might be examples of disputes which could be mediated without ascertaining what are the strict legal rights of the neighbours. But advocates and solicitors may be assured that the need for their expertise is not likely to evaporate.

I should indeed like to take this opportunity of expressing my gratitude to members of the profession for the enthusiastic way in which the mediation initiative has been embraced. A training session organised by JLIB through the good offices of the ADR Group has led to the recent qualification of nine local lawyers as mediators. Others are also, I understand, contemplating being trained either as mediators or in the skills of assisting parties to mediation. Some of the locally qualified mediators, identifiable by lapel badges, will be available at the reception in the Old Library afterwards to share their experiences, as will Mr Michael Lind from the ADR Group and Mr Charles Dodson from CEDR, both of which organisations offer their services for training and mediation purposes.

Before I finish I want to touch briefly upon three possible future developments:-

(1) There is another way in which mediation could be used, and that is in disputes between the individual and the state, or (in Jersey) the States. There has been a great and, in my view, misguided enthusiasm in the last few years for the creation of tribunals. In a small community such as Jersey, tribunals are, in general, an unnecessary and expensive complication. The ultimate tribunal for the resolution of disputes is, and ought to be, the Court. There is certainly a need for some more informal process before a dispute gets to that ultimate stage. In the context of employment disputes, the Jersey Advisory and Conciliation Service has been a resounding success. The environment and public services committee is now considering, with assistance from JLIB, whether mediation might be a means of resolving disputes between disappointed applicants under the Planning Law and the Committee. This might well pre-empt a number of appeals to the Royal Court. It is an area which other States committees and public bodies might wish to consider.

(2) Although Jersey has now embraced the concept of mediation, our sister Channel Island was actually a little ahead of us. Advocate Geoff Allez from Guernsey will say a few words in a moment about the Guernsey experience. As we now have trained mediators in both Channel Islands, it would clearly be a good thing to co-ordinate the development of mediation in both islands. This could be done commercially by a private organisation, or it could be done by a joint venture between the Guernsey Bar Council and the Jersey Law Society. It is something to which further thought could usefully be given.

(3) ODR, or on- line dispute resolution, is an area which could also be developed and marketed by both Channel Islands. It is not new, and has been available for some years, for example, in both the USA and the Far East, but there is certainly scope for its development in Europe. Indeed the European Commission has recently published a paper on the subject. It is an exciting possibility to which I hope that JLIB will turn its attention.

In closing, may I express my thanks to a number of colleagues who have been involved in the development of mediation in Jersey; to Charles Dodson of CEDR who pointed us in the right direction, to John Wheeler, the Master, who pioneered mediation in the Petty Debts Court, to all members of the JLIB Project Board, and in particular to the project manager, Melanie Cavey.