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MEDIATION THE FIRST AND LITIGATION THE LAST RESORT
1. INTRODUCTION
In mediaeval times, the orthodox method of resolving civil disputes was trial by battle. On the positive side this method provided a spectacle for the public and opportunities for fame and fortune for champions when engaged, but on the negative side for the parties the outcome was unpredictable with no necessary relationship to the merits of this dispute and for the participants the experience could provide traumatic if not fatal.
Plus ça change. In modern times the recognised method of resolving civil disputes is trial by judge or jury. On the positive side this method provides a spectacle for the media and through them for the public and opportunities for fame and fortune for lawyers (the parties' modern day champions). On the negative side for the parties the outcome remains unpredictable with no necessary relationship to the merits, and the cost of the experience for the parties can prove totally debilitating, if not fatal.
The thrust of my talk today is that, even as in the case of trial by battle the overwhelming balance of negative considerations required the development and promotion by the State and the adoption by the parties of alternative methods of resolution (namely trial by judge and jury in place of trial by battle), so today the overwhelming balance of negative considerations in the case of modern litigation requires the development and promotion by the State and the adoption by the parties of alternative methods of resolution (colloquially ADR) and most particularly the foremost method of ADR namely mediation.
2. THE TRIALS OF LITIGATION
Litigation has always been high risk, and no more so than today both in terms of uncertainty of outcome and cost. I shall consider each in turn.
(1) Uncertainty of outcome
Experienced litigation partners in leading City firms have told me that in the strongest of cases they can never give their clients an estimate of success in excess of 80%. If a 20% risk is the minimum risk in the best of all cases, the closest to "sure certs", what must be the risk in the great body of cases which fall far short of being sure certs?
I can remember the pleasant surprise of a number of successes at the Bar where I had totally discounted the prospect of success. In particular I remember one case which concerned the claim by my clients to the existence of rights of common land at Kenfigg in Wales. The issue required examination of the history of the land since before 900 AD. My initial estimate of our prospects was between poor and hopeless.
The response of my clients was unconventional. They were convinced of the justice of their case and prohibited any further discussion of the prospects as unproductive prior to trial. At the trial contrary to all the odds we won. I never knew how or why. No one else did save the judge, and he kept that a secret to himself. I recall another acting for Sam Wanamaker seeking to establish and enforce an obligation on the part of Southwark Council to provide the site of what is now the Globe Theatre. He was another litigant who would brook any odds to achieve his lifelong ambition to build a replica of Shakespeare's Globe Theatre. We should never have won - but we did. In this case I do know the reason: the judge took heated exception to the Council on grounds that had nothing to do with the merits of the case, or indeed the case at all, and to avoid his wrath the Council caved in.
The infirmity or selectivity of human memory is such that I have greater difficulty remembering cases when I lost sure certs - but I am sure that there were some. But I know I have as a judge reached decisions on a number of occasions when I thought my decision so clearly correct that they were unappealable - but I was successfully appealed.
Why is the prediction of the outcome of litigation such an inexact science? Let me look for a moment at some of the imponderables of litigation.
(a) Witnesses of Fact.
First and foremost, witnesses (and this includes parties as witnesses),"misfire" in the witness box. They can be disconcerted: they can lose their way and fail to make the most of themselves and their evidence. They can fall short of their proof. With the modern practice of prepared written witness statements standing as their evidence when formally confirmed by the witness in the witness box, a witness today is not exposed to the risk of "misfiring" when giving his evidence in chief, as was the recurrent risk before this practice was adopted.
But there is the real risk that in the preparation of the witness statement, with the perceived encouragement of the legal advisers who take the statement, the witness will "over-egg" the pudding and by such exaggeration expose his credit and recollection to challenge in cross-examination. The use of witness statements may save the witness from the effort of giving his story in his evidence in chief, but it does mean that, in the place of a friendly introduction to his roles as witness answering planned and predicted lines of questioning from the counsel who calls him enabling him to find his feet before facing cross-examination, the witness today is exposed to cross-examination almost as soon as he enters the witness box and - indeed cross-examination prepared in advance by reference to the witness statement. To stand and face questioning in the witness box exposed to public gaze is (most particularly for those unfamiliar with it) a daunting experience, not alleviated by the circus dress of the judge and counsel.
Anxiety and fright can render the task of listening to and answering questions from counsel a fraught experience. I know, for on one occasion I gave evidence in the High Court on the issue whether my opposing counsel and I had concluded a compromise. There was no suggestion that either of us was lying: the only issue was whose recollection was more probably correct.
Though for me the surroundings were familiar and I knew the judge and the judge knew me, I found the whole experience more disturbing and daunting than any in my 32 years of appearing as counsel before practically all the tribunals in the land. In the circumstances it is not surprising that, subjected to cross-examination, witnesses often fail to come up to proof. Further, estimates of their credibility and the weight to be afforded to their evidence can vary significantly. Many a time a witness, whom as counsel I scored very high, in the estimation of the judge got a low score if not a duck.
This is not perhaps surprising in view of the substantial subjective element in any assessment of a witness. Indeed the assessment of witnesses is in my view the hardest task of a trial judge. I distrust those who seek minimise this problem claiming that experience enables a judge to evaluate a witness before him and make a clear, confident and correct assessment. I recall facing a similar problem when as a law lecturer I had to interview students for admission to a University. I found the task painfully difficult . I told a colleague, a professor in another faculty, of my dilemma. He nonchalantly replied that he had no such difficulty: as soon as he saw students, he knew whom to select. Duly humbled, I reported this incident to another member of his faculty. He smiled and said: "He is right. He never has any difficulty interviewing candidates. He always selects the wrong ones." In a word, there is almost always the real possibility of an adverse finding on some issue of fact on which your claim or defence may depend.
(b) Expert Evidence.
Many cases arise which for their resolution require the examination and evaluation of expert evidence adduced by either party. This is practically invariable in clinical negligence cases when expert evidence is essential on issues e.g. as to causation as to whether the defendant's conduct is open to criticism as falling below the standards to be expected of him as a practitioner in any particular field and as to quantification of damages. It was in the past the sad experience of litigators and judges that "experts" could be hired to support as paid advocates almost any proposition. This occasionally happens today. Fortunately the courts have acted rigorously to meet this mischief.
They have met the mischief:
(1) by insisting that in suitable cases only one expert is instructed and he is the expert, not for either party, but for the court; and
(2) in cases in which each party is left free to call his own expert, (a) by insisting that the primary duty of every expert is to the court (and not the party who calls and pays him), (b) by requiring the experts on each side prior to the trial to prepare and exchange their reports and after such exchange to meet and prepare a joint report identifying, addressing and explaining the rival views on the areas in dispute.
But these exercises do not eliminate the scope for genuine unresolved disputes requiring the judge (a non-expert in the relevant discipline) to choose between conflicting expert views. This is an unenviable and invidious task. Cross-examination can occasionally eliminate this problem, but on occasion it can also aggravate it. The analogy to my mind is of a student in a discipline (possibly a beginner) marking the rival exam answers of the leaders in the field. How much confidence can you place on the outcome of such an exercise?
(c) Documents.
Documents may emerge at any time before judgment which can have a critical (indeed decisive) influence on the outcome of litigation. We have known cases where the claim or the defence has had to be abandoned because of the late discovery of a document or other information. The late George Carman QC had a string of successes attributable to such "gifts of the Gods". We all recall the way Jonathan Aitkin had to abort his libel trial when certain air ticket documents emerged at the last moment. All I am concerned to point out that any prediction must take account of unforeseeable events of this character.
(d) The Law.
Two aspects of the law need always to be borne in mind.
(1) The law is far from unchanging. It is constantly developing to meet changing perceptions of social justice and to correct perceived past errors. The law at any point of time may appear settled, e.g. even supported by Court of Appeal authority, but that is no guarantee against change in some other case before final judgment or in the case in question. The throughput in the Court of Appeal is such that mistakes are inevitable. I recall in a landlord and tenant case advising the client that he had a real chance of success, though less than even when his case reached the House of Lords (though not before). Between the hearing in the Court of Appeal and the House of Lords, the House of Lords gave a definitive judgment removing the ground from under our feet.
(2) The law however settled generally affords scope for the judge to reflect in his judgment his evaluation of the justice of the case before him. Authority rarely precludes a resolute judge reaching the decision he wants. But how can you predict his predeliction?
(e) Counsel and Advocates
Counsel and advocates (like everyone else) have their good and bad days; their degree of preparation may vary as may their effectiveness. The quality of counsel and their performance (in particular compared to the quality and performance of their opposing counsel) is frequently of critical importance, e.g. in cross-examination and re-examination or analysis of the facts of law in his speech, and their variability needs to be taken into account.
(f) Judges
Judges at all levels are fallible. That is the only excuse for the existence of the Court of Appeal. Judges are not clones of each other, though they may do their best to appear so dressed up in all their finery. They tend to be individualists with widely differing experiences in life, values and philosophies. Inevitably at all levels they are of varying calibres. These variations may well be reflected (implicitly if not explicitly) in their response to the cases brought before them - both at trial and on appeals. Much more important, judges have varying degrees of familiarity with issues of clinical negligence and varying degrees of experience and competence to in understanding and evaluating medical and scientific evidence. There is today a touching confidence on the part of the authorities administering the legal system that any and every judge is by reason of his training competent to try such cases, however complicated they may be. This is a topic justifying a conference on its own. I shall only say that not all practitioners (or judges) share that confidence, that there is a body who consider it misplaced, and that so long as the present practice is followed a further cautionary discount in any estimate of the prospects of success is called for on this score.
Generally, I want to warn against the (perhaps) natural and over-ready inference drawn from the flow of reasoning and findings in a judge's judgment that the outcome of the litigation before him was inevitable and accordingly readily predictable. It is like testing the difficulty of a crossword by looking at the answers before addressing the questions. You are in a different world before and after you know the answers to the questions raised. The judgment is generally the judge's ex postfacto rationalisation of the decision which he has reached. Its role is to pull all the threads together and produce a single harmonious whole. The judgment is an answer to the questions raised: it is rarely (if ever) the only or inevitable answer. It is the product of the processes of thought of the judge. If the judgment is a good judgment, it will be convincing. It will remove the clouds of uncertainty which prevailed beforehand and create the impression that the landscape always was clear. I have elaborated on the uncertainties of the outcome of litigation.
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