Woolf seminar shows clear favour for confidential mediation without prejudice

The Litigation and Dispute Management Group of CMS Cameron McKenna held a breakfast seminar on Alternative Dispute Resolution (ADR) in the light of the Woolf reforms. The Woolf Reforms have extended the importance of ADR further so that it is now generally accepted as one of the prime tools for resolving civil disputes.

The speakers provided insight from the four key perspectives:

• Judge’s perspective - Mr Justice Lightman, Judge of the Chancery Division since 1994
• Mediator’s perspective - Lord Griffiths, Lord of Appeal in Ordinary 1985-1993
• Client’s perspective - Graham Amos, Head of Recoveries, Business Banking, Lloyds TSB Bank plc
• Legal adviser’s perspective - Anthony Fincham, litigation partner, CMS Cameron McKenna, recognised by the recently published Chambers Guide to the Legal Profession as a leader in the field of mediation and described as ‘knowing the lot when it comes to mediation’.

The seminar stimulated debate from the attendees and identified three issues which are detailed below:

Court intervention in the mediation process

The attendees voted wholeheartedly against the suggestion that the courts should have the power to punish parties involved in the mediation process, even if obstructive practices have occurred in the mediation.

Mr Justice Lightman argued that the court should be able to penalise parties in costs for obstructive practices during the mediation process. He accepted this would involve lifting the veil of confidentiality.

Lord Griffiths contended that it is crucial for the mediation process to retain its two key tenets - confidentiality and privilege.

Anthony Fincham commented ‘I am totally with Lord Griffiths. I think that the whole mediation process would be undermined if the courts could require a mediator to report a party he considered to have acted unreasonably’.

Mediation vs Justice

Mr Justice Lightman observed that whilst ‘mediation provides a proximation to justice, settlement may not reflect the merits of the dispute’.

Anthony Fincham added: ‘It is ironic that judges are pushing mediation, some with evangelical fervour and the zeal of the convert, whilst they also appreciate that an unjust result may prevail.’

Abuse of mediation process

Graham Amos, Lloyds TSB, noted that the mediation process did give rise to risks of abuse - for example, by clients attempting to buy time or obtain confidential information prior to litigation.

Anthony Fincham commented ‘I have encountered parties abusing the mediation process by using it to gain time in litigation. There is nothing on earth a mediator can do’.

For further information please contact:
Anthony Fincham on 0171 367 2789 or [email protected]
Tony Marks on 0171 367 2508 or [email protected]
Tim Hardy on 0171 367 2533 or [email protected]
Susan Barty on 0171 367 2542 or [email protected]