Saturday, January 24, 2015

New Article on Judicial Promotion of Civil Mediation

"Ten Years After Halsey"
Civil Justice Quarterly
Vol. 34, Issue 1, January 2015, pp. 77-95
Anna Koo
Introduction: Judicial promotion of mediation has been unprecedented in major common law jurisdictions since the Pound Conference in April 1976 and civil justice reforms between the 1990s and 2000s. Judges raised public awareness of the perceived benefits of mediation and directed far greater use of the process, which helped the mediation industry to flourish. Yet the court’s role in administering mediation set England and Wales and Hong Kong apart from other countries. The judiciary in the United States, Canada, Singapore, Australia and New Zealand embraced compulsory mediation in varying degrees, while their English and Hong Kong counterparts opted for encouraging voluntary mediation backed up by the threat of a costs sanction for unreasonable refusal to mediate. Both jurisdictions lacked empirical research to support the effectiveness of their choice. More regrettably, a clear trend emerged in practice: costs-only hearings with arguments related to mediation proliferated. Often, litigants criticised the other side’s approach to and conduct in mediation. A new type of satellite litigation is brewing. 
     In Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576, the English Court of Appeal made propositions of the positive and negative reinforcements of civil mediation. It affirmed that the court could not require litigants to proceed to mediation against their will, for this would defeat their right of access to the courts and would achieve nothing except to add to their costs, possibly postpone the time for judicial determination and damage the perceived effectiveness of the alternative dispute resolution (the ‘ADR’) process. The function of the court is to encourage, not to compel, the use of mediation. Further, as it did not consider that the imposition of a costs sanction was tantamount to compulsory mediation, it placed the burden of proof on the unsuccessful party to show that the successful party had unreasonably refused the process. It elaborated on seven non-exhaustive factors that could justify an adverse costs order against the successful party: the nature of the dispute, the merits of the case, other settlement methods attempted, the costs of mediation, delay in setting up and attending mediation, the likelihood of a successful mediation and the impact of the court’s encouragement (the ‘Halsey Guidelines’). 
     Halsey provoked unease within the judiciary as to its lack of power to compel mediation. While the ruling endorsed words of encouragement in mediation orders, it left it up to the court to determine best practices of active case management. By and large, judges followed the Halsey Guidelines, taking into account other relevant circumstances of a particular case and extending the guidance on few occasions. Ten years on from Halsey, Jackson LJ’s Review of Civil Litigation Costs (the ‘Jackson Review’), Briggs LJ’s Chancery Modernisation Review (the ‘Briggs Review’), reflections of Dyson and Ward LLJ who were parties to the decision and a burgeoning body of post-Halsey jurisprudence have devoted considerable attention to greater integration of mediation in the English civil justice system. This article focuses on these new resources and argues that, for the purpose of achieving substantive justice limited by proportionality between the parties and among all court users, the role of the court is being expanded to dispute resolution management, while the decision to attempt ADR and settle out of court remains vested in litigants. For the current judicial policies to be effective, proactive encouragement and imposition of costs sanctions in accordance with a more nuanced reformulation of the Halsey Guidelines go hand in hand...  Contact the author to request a copy of the article.

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