Mind the Gap...
Mediation and Judicial Review
Val Reid, a member of the Public Law Project research team, discusses a current study of the role of mediation in judicial review.
During 2007-08, the Nuffield Foundation is funding research by the Public Law Project (PLP) on the role of mediation in judicial review (JR). For the last ten years, the underlying assumptions of the Access to Justice reforms have encouraged parties to consider and use ADR before getting involved in the legal process. This is increasingly being debated and piloted in different courts. Mediation has been well established in divorce and separation proceedings for over twenty years, and is commonly used in major commercial disputes. There has been a mediation scheme at Central London County Court for over ten years. Encouraged by the Ministry of Justice, mediation for small claims is currently being established by the Courts Service throughout England and Wales. The same thing is happening in the world of tribunals, with mediation pilots in Employment Tribunals, and a scheme exploring the use of early neutral evaluation techniques in the Appeals Tribunal.
Although the government’s 2001 pledge to use ADR to resolve its own disputes specifically excluded public law, Lord Woolf’s decision in Cowl[1] made it clear that JR should not be exempt from this principle, and since then the JR pre-action protocol has confirmed it. Yet it is indisputable that the take-up of mediation as an alternative to JR is low. Why the gap between principle and practice?
The PLP research team is interested in analysing this gap. Is it because practitioners lack a clear understanding of the process of mediation? Or do solicitors believe the mediation process adds no value to bilateral negotiations? Is there a significant difference between the approach of claimant and defendants when it comes to thinking about mediation? Is it partly to do with the confidentiality surrounding the mediation process and outcomes, so that it is impossible to find out from mediators working in this area what actually goes on? Is it that judges are reluctant to cede power and responsibility in matters of public law? Or is it the result of more principled concerns such as the importance of a transparent supervisory role for the court, the need to create precedents, and the retreating role of adjudication in public law? And to what extent are these actual rather than hypothetical concerns in JR cases?
Whatever the answers, it is clear that it is essential to explore in some depth the views and experience of legal practitioners, judges and mediators themselves; this is the aim of the project.
Many claims have been made for the benefits of ADR, especially mediation. Government and mediation providers claim that mediation can lead to savings in costs as well as in court time, and provide a wider range of remedies and solutions to disputes than courts can offer. This is particularly relevant in JR, where the legal remedies are very limited. However, JR has an important constitutional function in challenging public bodies on behalf of individual citizens. As well as that, compared to other forms of civil litigation, JR offers flexibility, relatively low costs, and speed. If mediation does offer a valuable alternative to JR, it is important to evaluate its benefits in the light of the reality of the JR process, and not simply to assume that mediation will be effective, because it works well in other arenas such as commercial disputes involving money claims.
Although there is widespread enthusiasm about mediation from policy makers, some judges, and (not surprisingly) mediators themselves, other commentators have expressed concern about the dangers of the ‘vanishing trial’ or the privatisation of justice. This is particularly acute in the area of public law and judicial review, where the need for court judgments to have a radiating effect on decision-making by public bodies is a particularly important check on the authority of the state. Mediation takes the resolution of disputes between citizen and state out of the public domain, and into the realm of personal settlement. What impact might this have on the principle of public accountability? Can the court still have supervisory jurisdiction over the activities and decision-making of public bodies if disputes are resolved away from the courtroom? Where will the policy implications of public law determinations be debated? How can precedents be set for future cases? Are mediators really able to level the playing field where there is such an extreme imbalance of power?
Despite these concerns, the research team is aware of the view that some public law disputes are potentially suitable for mediation, or at least elements of them could be resolved using mediation. This may be true particularly in disputes in which the resolution involves discussing and agreeing factual inaccuracies, or working out detailed practical arrangements. In addition, it could be argued that mediation might have a role in sensitising public authorities to long-term patterns of poor decision-making and the impact of their decisions on service users. It has also been suggested that mediation allows greater participation by the parties themselves than does the JR process, which may be valuable in some circumstances and to some individual parties.
The current study will also analyse information from a related Nuffield Foundation funded project, ‘The Permission Stage in Judicial Review’ (conducted jointly by the University of Essex and the PLP). This study will be published later in 2008, and findings confirm that a high proportion of JR cases settle at an early stage. Around a third were withdrawn before permission was even considered by a judge, the vast majority because a favourable outcome for the claimant was agreed by the public body concerned. Where permission to go ahead with a JR case was granted by a judge, around half of cases settled immediately afterwards. One question to ask is whether mediation has anything to offer in cases that will settle anyway, without further court intervention. This is relevant for tribunals as they explore if, where, and when to incorporate mediation into the tribunals process.
This earlier research project has also highlighted some important issues which are highly relevant to the ongoing thinking about mediation in the tribunal process. In interviews, many practitioners raised concerns about how mediation could work in urgent cases. Others talked about the importance of needing a definitive determination on a point of law by an official body which is perceived to be impartial. The importance of setting public precedents which could be relied on in future cases was flagged up as an important role. Others expressed concern at the fact that mediated agreements are confidential, and therefore not open to public or judicial scrutiny. Surprisingly few mentioned concerns about the imbalance of power between individuals and public bodies, though this has been frequently discussed in the literature on this topic. The current research team will be exploring with lawyers, judges and mediators whether and how these concerns can be addressed, if mediation is to have a role in JR.
The vague sense that mediation is a ‘good thing’ has been around for some time. It is important not to accept the current pro-mediation policy at face value if there are valid, principled objections which need to be recognised. It is also vital not to dismiss mediation because of the unchallenged assumptions of some practitioners. This research project aims to probe beneath the surface and to produce proposals for a way forward which reflects the complexity of this subject.
Footnote
This article is based on previous discussion papers and
short articles written by the PLP project research team:
Varda Bondy Senior
Researcher, Public Law Project
Margaret Doyle Independent ADR consultant and
mediator
Val Reid ADR policy officer, Advice Services Alliance
Notes:
[1] Cowl v Plymouth City Council [2001] EWCA Civ 1935, (2002) 5CCLR, [2002] 1 WLR
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