Parts 1 & 2 – The Civil Proceedings Rules (CPR) and the Family Proceedings Rules (FPR) govern the operation of litigation and the courts and how lawyers, litigants and judges run cases. There is already a rule saying that costs must be proportionate to case value, but whilst judges beg people to settle their cases and stop wasting money – litigants think they can’t because no one tells them how this can be done. People do not know how successful mediation is at settling disputes and so don’t use mediation, even though it works. No one tells them how successful it is, because they are intent on the Law, the litigation, its procedures and getting the ‘right result’. Mediation is the invisible elephant in our justice system. It is gently waiting, able and willing to help people make peaceful settlements – but the environment in which it lives is stifling it and so litigants suffer.
Countless cases go through the courts with costs mounting to stupefying levels. Examples include:
- A dispute between neighbours over drain repairs worth £4,000 in a garden, where costs exceeded £300,000 and became existential with the fight continuing over costs and who lost their house to pay.
- The divorce case over £3m of assets where the costs were £930,000 – wholly disproportionate when mostly people are arguing over 10-20% of their assets.
- Countless divorces where the costs exceed 20% of the assets so people have less for housing and costs exceeded the value of the difference between them. Why?
- Numerous cases where the costs are £30,000 and the case settles in mediation with no money changing hands or a smaller payment.
- A dispute we mediated between two flat owners over noise – sound-proofing between the flats cost about £3,000, they were about to go to trial with total costs of £64,000 – the judge directed mediation and they settled with a Focus mediator with one person buying the other flat (the judge could not have ordered this).
I could go on all day – you get the picture. I looked at the Civil Litigation statistics for 2015 and calculated less than 4% of all defended cases were mediated, the rest litigated with no intervention to try and settle them. When people issue court proceedings they expect to engage a functional system and have no idea of the costs and delays they will face or how broken our system is. The legal process is narrowly focused on establishing the facts/truth then applying the Law (statute as interpreted by case law) to the facts and KERCHING – the ‘Right Answer!’ In reality it doesn’t work, because the truth and facts are debateable and establishing them prohibitively expensive and the Law is often unclear with much ‘On the one hand this and on the other hand that . . . ‘
What happens when parties get desperate for litigation to end?
There comes a time when the parties are getting desperate for litigation to end. They see the it stretching into their future life like cancer, they want it to stop – but how? This is where in a functional dispute resolution system there must be alternatives to trial, escape hatches from the madness – and this should be mediation. We know mediation works. It deals with every aspect of the dispute, especially those emotional conflict drivers that fuel litigation and which the legal system ignores as irrelevant. Legally irrelevant they may be – but for many people emotional conflict drivers are the real reason for fighting at court.
We need to make the Proportionality Rule mean something understandable so it works. When joint costs reach 20% of case value judges must automatically refer cases to mediation, so people can have help settling their dispute with a conflict resolution expert. Where the case value is unclear the judge must simply refer to mediation before costs get out of hand. This has the added attraction of costing the tax-payer nothing and diverting and settling huge volumes of litigation. Justice as it works at the moment is the medicine that is killing the patient. We need a workable, fast and humane alternative – and mediation is the answer.
What conceivable reason is there for not trying to settle litigation before it has cost more than it’s worth? Stop the Madness – make the Proportionality Rule work with an automatic referral to mediation when joint costs reach 20% of case value.
Author: Mary Banham-Hall, Family Mediator, Milton Keynes & Bedford
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