Unrepresented or poorly represented parties, or those who sought the publicity and fanfare of litigation, were the types of cases that ended up running, the judge said at the event, which was organised by the Law Society’s Alternative Dispute Resolution Committee.
Judges might question why a party looked for an order compelling mediation, Ms Justice Roberts said: “Either that party has no case and just wants to drag people around a table to try and extract a settlement, or that party is dealing with an entirely unreasonable other side. If it’s the latter, making an order for mediation is likely to be much more useful,” she said.
With proper case management, judges could be involved at the outset and suggest settlement, she said.
The judiciary could only be of limited use, in that cases were almost ready for trial when they came before the bench, and money had been spent. “Very often, after an interlocutory application, I would make some comment that I hoped the parties would pick up … that they should do something,” she added. “I’m still very surprised how many cases come in before me where it’s obvious to me that parties have not really engaged at all, even in the ‘neg’ part. I think that’s always a great pity,” she said.
The judge added that she had initially found it difficult to indicate to parties that she believed they should settle: “I looked like a work-avoidance person when I said that!” she joked.
There was a fear on the part of judges of being perceived as unwilling to hear a case or write a judgment, Justice Roberts added. In such cases, the judge said that she was neither unwilling nor unable to make a decision – but simply in favour of more creative thinking in the form of mediation. “When a judge signals to you that the parties should engage, understand what that means,” she advised.
“It’s back to the cultural point – you can’t actually say ‘I think this person has an awful case’,” the judge pointed out. “You become very aware as a judge that you have a sort of ‘machete’, which can smash things in two – probably not to the benefit of many people,” she added.
One of the advantages of mediation was the creativity and the ability to fashion a solution by taking a small scalpel to a matter, the judge commented.
‘Cultural awareness’ key
The Middle East and North Africa region has not picked up on arbitration or mediation opportunities, with a tendency to seek an award for damages in the event of contract failure, renowned international arbit-rator Prof Mohamed Abdel Wahab said at the event.
The academic added that some societies tended to be very litigious, and arbitration was not even begun, despite its success rates. There was a lack of trust between parties once a contract failed: “People always ask the question: where is the award and how are we going to enforce it?”
Dr Wahab said that working in international mediation had made him more aware of cultural differences, and that cultural awareness was key to working in the field. “You become more and more aware of the specificities and anomalies of different cultures, and to accept that there is a degree of tolerance and understanding that certain things can be done in different ways –
and they are all correct ways, depending on how and what way parties want to proceed,” he said.
Solicitor Brian McMullin spoke about the need for a strategic outlook when focusing on successful outcomes for clients: “Lawyers should take a strategic outlook that means keeping an open and creative mind on methods of reaching agreement, rather than getting stuck on a framework of litigation,” he warned. “Clients want a successful outcome, or at least an outcome they can live with.”
Arthur Cox partner Karen Killoran said that independent expert determination was another very useful form of alternative dispute resolution, but should be used for bespoke, discrete issues. “The utmost important thing is that you contemplate, at the time of entering the contract, the types of issues that may, in fact, cause a dispute,” she said.
Technical disputes on a large construction project could revolve around whether the project had reached practical completion or not. This type of dispute was very well suited to an independent expert determination, and crossed into areas of property and real-estate law, the Arthur Cox partner said.
Resorting to court might pause big projects for up to 18 months, she pointed out: “For that reason, I am a big proponent of dispute-resolution clauses,” she said. She pointed out, however, that the downsides were that a notice of dispute referring a matter to mediation would not ‘stop the clock’ on the statute of limitations.
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