Bailiff’s Speech at Launch of Mediation Rule
Tuesday 8th 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
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
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
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
(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.