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June 09, 2009

Mediating between lawyers and accountants

The courts are not threatened by alternative methods of dispute resolution, according to the Master of the Rolls, Lord Clarke of Stone-cum-Ebony.

England’s senior civil judge was speaking last night at a lively seminar in Gray’s Inn organised by Littleton Chambers. I must immediately declare an interest: I was invited by the organisers to chair the discussion that followed.

Lord Clarke quoted my report of Prof Dame Hazel Genn’s Hamlyn Lectures last December, in which she attacked what she saw as the downgrading of civil justice, the degradation of civil court facilities and the diversion of cases to private dispute resolution.

Mediation “is not about just settlement”, Dame Hazel had said. “It is just about settlement.”

Lord Clarke acknowledged that alternative dispute resolution would not solve all problems and he agreed that it should be no more than a supplement to litigation. He said Dame Hazel’s warning should not be ignored. In his view, though, the courts were not under threat.

“I do not think that the existence and value of the role of the courts in the civil justice system is in any way threatened by ADR in general or mediation in particular,” he said. “On the contrary they are an important adjunct to the role of the courts and, critically rely upon the courts to succeed.”

That view was shared by Philip Bartle QC and the other panellists from Littleton Chambers — Richard Price QC, David Reade QC and Naomi Ellenbogen.

In something of a judicial first, there were comments from the audience by Lord Neuberger, Lord Justice Waller, Lord Justice Jacob and Mr Justice Eady.

Some mediation enthusiasts present were surprised to discover that many of the judges who urge litigants to mediate have never attended a mediation themselves. The service was simply not around when they were at the Bar.

Last night’s exception was Lord Justice Ward, who trained as a mediator in order to understand the process. He told the seminar that being a mediator was very different from being a judge.

Lord Clarke’s support for mediating disputes whenever possible was shared by the indefatigable Lord Woolf, who launched a mediation service this morning on behalf of the Institute of Chartered Accountants and the ADR Group. It will be called Resolving Commercial Disputes.

The former Lord Chief Justice is one of 20 mediators drawn from the legal and accountancy professions whose services may be secured through the new service. Another is Cherie Booth QC.

Resolving Commercial Disputes will normally recommend a pair of mediators: one lawyer and one accountant. It was therefore not surprising that Jane Andrewartha, a solicitor with Clyde & Co and one of the mediators lined up for the new service, took me to task — in the nicest possible way — for asking the panel last night whether barristers or retired judges made the better mediators.

Posted at June 9, 2009 12:04 PM