The Master of the Rolls has said that judges should direct more litigants to mediate before taking disputes to trial.
Speaking at the Civil Mediation Council's second national conference in Birmingham last week, Sir Anthony Clarke said that the power exists for the courts to regularise mediation and to make it an integral part of the litigation process.
Sir Clarke said that "far too many people know far too little about mediation. I think we can all agree that this has to change... it must become such a well established part of [our litigation culture] 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 and whether a Part 36 Offer ought to made and at what level."
In order for this to happen Sir Clarke said lawyers and judges will need educating so that mediation becomes second nature to them.
In his speech, Sir Clarke said that the judges' approach in the landmark Halsey v Milton Keynes General NHS Trust appeal court case had been 'overly cautious'. This case ruled that compulsory ADR would breach the right to fair trial under Article 6 of the European Convention on Human Rights as it would amount to an unacceptable constraint on the right of access to the court.
Sir Clarke said that there may grounds for suggesting that Halsey was wrong to on the Article 6 point. "If mediation is successful it does obviate the need to continue to trial, but that is not the same as to waive the right to fair trial. If it were, any consensual settlement reached either before or during civil process could arguably amount to a breach of Article 6, which clearly cannot be the case", he said. "