Senior Judicial Observations
Sir Anthony Clarke, Master of the Rolls, speaking in an individual capacity at the Second Civil Mediation Council National Conference on the Future of Civil Mediation, Birmingham 8 May 2008:
"ADR in general and mediation in particular, where it is the appropriate ADR mechanism, must become an integral part of our litigation culture. It must become such a well established part of it that when considering the proper management of litigation it forms as intrinsic and as instinctive a part of our lexicon and of our thought processes, as standard considerations like what, if any expert evidence is required...
"This will require education; education on the part of litigants, lawyers and the judiciary. Lawyers and judges will need educating so that mediation becomes part of the culture; so that it becomes second nature to us all. The onus lies on you and me to ensure that litigants appreciate mediation's many benefits: its informality, its confidentiality, the possibility it holds of enabling the parties to reach a consensual resolution to their dispute and to do so more quickly and at lower cost than might well be possible in the zero-sum game which is litigation.
"Over and above education, what can the judiciary do? What we certainly cannot do is sit back and do nothing. Those days are now long gone. Active case management and the overriding objective (to deal with cases justly) very properly put paid to the days of the passive judge."
Excerpt from a speech by Lord Phillips of Worth Matravers, Lord Chief Justice, entitled Alternative Dispute Resolution: an English Viewpoint, India, 29 March 2008:
"Let me end by nailing my colours firmly to the mast. I number myself with Sir Anthony Colman and Sir Gavin Lightman as an enthusiastic supporter of ADR.
"It is madness to incur the considerable expense of litigation – in England usually disproportionate to the amount at stake – without making a determined attempt to reach an amicable settlement. The idea that there is only one just result of every dispute, which only the court can deliver is, I believe, often illusory. Litigation has a cost, not only for the litigants but for society, because judicial resources are limited and their cost is usually born – at least in part – by the state. Parties should be given strong encouragement to attempt mediation before resorting to litigation. And if they commence litigation, there should be built into the process a stage at which the court can require them to attempt mediation – perhaps with the assistance of a mediator supplied by the court."
