Solving Disputes

adr

 

Readers will be familiar with my preoccupation with alternative dispute resolution – especially if you flash back to my postings here – ‘Privatised Courts – where to, where from‘ and ‘Fit for Purpose‘.

With a civil court £100m deficit last year, court fees have had to rise (in one case by 216%). Such rises impact on access to justice for many people. Yet the court issue fee is the least of a litigant’s problems. The biggest is arguably their legal costs at the conclusion of the case.

The only answer to massive legal bills (and the real danger of adverse costs orders against unsuccessful litigants)  is to bypass the legal process altogether; although whilst the courts are open for business, and litigation lawyers strive to make money, this option is not currently realistic.

I have been impressed by recent developments in restorative justice, where those in conflict are encouraged and helped to sort things out between themselves in a civilised way. It is now acknowledged that there are almost no disputes that need to be excluded from this restorative process. Facilitators are arranging meetings in homicide and rape cases, and in long-standing conflicts that have been running for years. Even cases involving highly dangerous perpetrators, those with mental illness, and with children and young people are often deemed suitable for facilitation.

In my view, this is the vision for the future – lawyers and courts standing back, to allow for a more proportionate and appropriate resolution.

It will require a new role for law and for lawyers. Legal rules are there not simply to be known to lawyers and applied by judges in binding outcomes; but should be made available to guide those in dispute towards sensible compromises. The law should act as a framework for a well-ordered life, rather than as technical and incomprehensible set of rules to be adjudicated upon.

Speak to anyone who has been involved in legal processes and they will tell you that justice is always partial. This is because, whilst courts are supposed to be brokers of truth and justice, decisions arise from balances of proof and evidence, and judgments are frequently arbitrary. Once in the legal process, the litigants surrender all real power over outcomes, and remain in the hands of one individual, with that person’s limitations and prejudices. Not all judges are good judges, and not all of their decisions are correct. And to correct a poor decision by appeal takes time and often a considerable amount of money.

Firms of lawyers and barristers’ chambers should offer and provide proper ‘Dispute Resolution Centres’ – a place to which the protagonists can turn for considered and proportionate advice, and from which they are not expelled into an adversarial forum. Joint legal opinions and advice would form the first step helping the ‘parties’ to understand a framework for settlement. After that would come the facilitation stage – not necessarily managed by and restricted to the lawyers – but perhaps overseen by expert dispute brokers. And if issues remained, those in dispute would access simple adjudication by way of joint expert decision or arbitration.

Dispute Resolution Centres could operate on the basis of fixed fees without ‘issue costs’, teams of warring layers, and vitriolic letters – providing a ‘one-stop-shop’ to contain and resolve conflict.

For those that doubt the concept, remember, if lawyers do not take this initiative now, others may do so to their exclusion.

End of life – now await Lord Falconer’s bill on 18 July in the House of Lords

tony nicklinson

The long awaited judgment in R v Nicklinson has been handed down in the Supreme Court. Here is a link to the YouTube video.

Readers will note that the judgment comes after considerable deliberation by  a massive nine  Supreme Court Judges – an extremely rare occurrence. It follows that this is one of the most important judgments of recent times, and is worthy of a careful and comprehensive read.

Dignity in Dying summarise the 366 paragraphs of judgment thus:

Summary of the case outcomes

Martin case

None of the nine justices ordered the Director of Public Prosecutions (DPP) to clarify the prosecuting policy on assisted suicide in relation to healthcare professionals. However, Lord Neuberger, Lady Hale, in particular, made it clear that the justices expect the DPP to look again at her policy in the light of their concerns and comments, and to amend it as she sees fit.

This is, in particular, to address a clear contrast between what the prosecuting policy actually says about healthcare professionals and assisted suicide, and the interpretation given to it by the DPP’s legal counsel during the court hearing on her express instruction (this was essentially agreeing with Lord Judge’s interpretation in his decision on the case at the Court of Appeal).

Nicklinson/Lamb case

Whilst there was no declaration of incompatibility, several of the justices indicated that they think the court could (depending on the application before it) declare section 2 of the Suicide Act incompatible with Article 8 ECHR rights in the future if Parliament does not amend it.

Lord Neuberger, Lord Wilson and Lord Mance accept that, in the right case and at the right time, it would be open to the Supreme Court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 of the European Convention on Human Rights. However, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration.

Lady Hale and Lord Kerr would make a declaration of incompatibility now. Lord Kerr put matters simply:

“If one may describe the actual administration of the fatal dose as active assistance and the setting up of a system which can be activated by the assisted person as passive assistance, what is the moral objection to a person actively assisting someone’s death, if passive assistance is acceptable? Why should active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance not? In both cases the assister’s aid to the person who wishes to die is based on the same conscientious and moral foundation. That it is that they are doing what the person they assist cannot do; providing them with the means to bring about their wished-for death. I cannot detect the moral distinction between the individual who brings a fatal dose to their beloved’s lips from the person who sets up a system that allows their beloved to activate the release of the fatal dose by the blink of an eye”.

Is  the judgment the ‘yellow card’ to our legislature; or simply indicative of the Supreme Court judges being too cautious – despite the weight of public opinion concerning their moral duty?

The Assisted Dying Bill brought by Lord Falconer is due for its first reading in the House of Lords on 18 July 2014. The majority of Supreme Court judges have sent a clear message to the legislature – ‘whilst we will not interfere now, should the law not be clarified by new legislation, we may’.

Dying for death – the legal right to die

Following a recent personal experience is sometimes not the best time to address life-changing legal issues that will affect others. During the recent protracted death of my 91 year old mother following a severe stroke, I found myself and my family precipitated onto the Liverpool Care Pathway. Our involvement was to watch, bedside, whilst she struggled towards a delayed death, cared for by kind and competent medical staff, but hindered by an unkind process.

The Liverpool Care Pathway is to be reviewed. Is it sufficiently clear? Is it clear regarding the issue of food and hydration during dying? How can we ensure that proper information has been shared with a patient’s family, and consents have been freely given?

The Pathway, developed during the late 1990s in conjunction with the Marie Curie Palliative Care Institute at the Royal Liverpool University Hospital, was to allow people with a terminal illness to die with dignity. Then, and perhaps now, this approach is counter-intuitive for a medical profession dedicated to cures and life.  Entry to the Pathway is the recognition that death is both inevitable and imminent. This final furlong involves the end of active, life-sustaining treatment, and the acknowledgement that death is an objective.

The Pathway may be simple if the patient is unable to take nutrition and liquids without painful medical intervention. An unconscious patient is expected to slip further from life, absent life support. But what if the patient really needs assistance with dying?

Tony Nicklinson suffered from ‘locked-in syndrome’. His unsuccessful High Court challenge to the right to an assisted death was taken over after his death in 2012 by the paralysed Paul Lamb, and resulted in the constitutionally correct, but unkind ducking of the issue by the Court of Appeal. The court held that denying assistance towards death constituted a proportionate interference with Article 8 rights to self-determination. Lord Judge considered that any change to the law was a matter for parliament to legislate.  The associated ‘Martin’ appeal was however allowed. Here, the Director of Public Prosecutions was required to provide clearer guidance on prosecution policy of those, including medical staff, who may accompany a patient to Switzerland for the purpose of assisted dying.

The matter could not end there. The case now awaits judgment from the Supreme Court. Paul Lamb has continued his legal battle for the right to an assisted death, whilst Keir Starmer, the former Director of Public Prosecutions asked for further guidance from the Supreme Court on prosecution policy.

Examining the current guidance, it is significant that the ‘full code test’ which has to be met before a prosecution is brought, comprises not just an evidential test, but a public interest assessment. Herein is the dichotomy – between individual rights (or wishes), and public interest considerations.

Baroness Mary Warnock (moral philosopher and thinker) and Elisabeth MacDonald (cancer specialist and expert on medical law) captured these issues comprehensively and sensitively in ‘Easeful Death- Is there a case for Assisted Dying‘, published by Oxford University Press in 2008. They summarise the debate (as did the House of Lords Select Committee) as representing two conflicting principles – ‘the sanctity of human life’ and ‘the principle of autonomy’. In 1998, the debate centred around the wishes of motor neurone disease sufferer Diane Pretty to die with dignity. Lord Joffe’s bill, the last before Parliament, was rejected in 2006. It is a sad commentary on the state of English law that, whilst parts of the European community have developed a cogent end-of-life policy, the UK still flounders with indecision.

The BBC script writers of Coronation Street revived the debate this year with the death of Hayley Cropper, taking her own life rather than waiting for a painful death. Following the screening, polls recorded that 80% of the British public support the idea of medical assistance to die with dignity. Interestingly, 71% of those expressing religious beliefs also support a change in the law.

Should the wishes of mentally competent adults be treated with respect when it comes to the fate of their own life and body? Should those whose medical or physical condition is so severe that they are unable to help themselves, be assisted on the pathway to dying? Are sufficient safeguards available to prevent unlawful death? Should the compassion card trump the legal prohibition?

The latest Assisted Dying Bill, brought this time by Lord Falconer and modelled on the law in Oregon, USA, is to ‘enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes’. A free vote is to be allowed, although currently 30% of MPs support the Bill and 40% are yet undecided. The Bill’s scope is limited, compared with Switzerland (where assisted suicide has been lawful since the 1940′s), Holland and Belgium.

Whilst this Bill may not have helped my mother towards a peaceful death -with public support – it is certainly a step on the way.

 

 

Party Animals

MUNBY

photo of Sir James Munby, President of the Family Division, courtesy of Brian Smith for the Telegraph

“Going to court about your children is almost as bad as accepting an invitation from Jeremy Kyle…you should have sat down quietly together and sorted it. Instead you go for broke and destroy your last bit of dignity in a courtroom drama?

Strong words, (I hasten to add, not from the President of the Family Division) and amusing in their invective; but containing that trace of truth that harbours an important point.

If anyone was to invent a process that was better designed to fan the flames of conflict and at times humiliate the protagonists, they may be hard pushed to beat the current ‘family court system’. Take two people who are at loggerheads, a judge who ‘has better things to do’, bring in two lawyers with their jerry cans of publicly funded fuel, strike a match and you’re sure of a big blaze. If you are legally aided, the taxpayer gets to pay for your day in court, and if you are not-so-sponsored, you can also add in a huge bill for all the damage that is sown and reaped.

For over thirty years I have played my part as a barrister in these cases. Often, there are no winners – apart from the lawyers. The adults leave court with the compromise they could or should have agreed many months before, and the children pick up the emotional tab of their parents’ conflict.

In my previous blogs I have explored the role of mediation to tame the tempest. Glance back to see my ‘mediation musings’. But in this blog, I want to explore the question of why we allow (and frequently require) the adult players to be the drivers of litigation concerning their children.

The Children Act 1989 was intended to put children first. Maybe it did, but the legislators did not seize the stinging nettle as to ‘who should manage’ competing claims. In 1989, the adversarial system was still in full flight, even in children cases, and family advocates were rated on being a “good fighter”, “doughty opponent”, or “a determined advocate”. It would have been unconscionable to remove from parents their cherished ‘party status’ through which they could both commence proceedings and seek to control them as litigators.

Now the climate has changed. The courts have felt the effect of global warming and frequently turn on the air conditioning, or even the sprinklers to cool the temperature of conflict. The Children and Families Bill seeks to remove some of the more divisive concepts concerning private law orders. So, is the right time to take that extra step – and withdraw party status from the protagonists?

Envisage a system where, when an issue arises in relation to the care or management of a child, the court is notified, and appoints a ‘children’s guardian’ as a matter of course.

Rather than allowing the adults to rush through the doors of the court, the guardian would mediate between the parties, aiming for the middle ground that is so often adored by judges. Where agreement was possible, it would be recorded as an agreement and submitted to the court as endorsed in AI v MT and re-affirmed in S v S.

Should agreement not prove possible, the guardian’s solicitor, owing an equal duty to the child and the court, would take over the whole case management. One of their tasks would be to obtain statements from the parents setting out their concerns, positions and requests. The parents /grandparents /extended family members would all remain witnesses, having a right to have their voice heard, but not to manage and control the case. Only in public law cases where serious allegations were made against a parent would the question of party status arise.

In the absence of party agreement, the Guardian’s advocate would present the contested issue to the court, calling the parents as relevant witnesses. That which had already been agreed could be outlined, and the remainder decided by the district judge.

Of course, we would have to move away from the adversarial process, and that would require cultural and legislative changes. This may already be awaiting in the wings with the advent of the Single Family Court. We would also need proper funding of guardians and their solicitors. But the saving of replicated costs of party status for parents would probably pay for a pretty good service.

The requirements of efficiency and institutional functionality would probably rule out CAFCASS as a service provider, yet with a large pool of funded, professionally regulated, independent guardians, this problem could be overcome.

European Convention articles 6 or 8 may be cited as an issue, but  the European Court in Rosalba Alassini & Ors v Telecom Italia SpA & Ors, a endorsed the introduction of compulsory mediation as a preliminary step to litigation. Here, the facilitative role of the Guardian would be a preliminary step before the right to be heard by the court.

Do you agree that the change is a timely and necessary step on the road to managing both public and private law issues competently and proportionately, keeping the child on centre stage?

But what about the poor lawyers who would lose work? …..Yes, you have a point there.

The relationship between the Bar and the Bench

bench press

In January two years ago in Family Proceedings on the Move I raised an issue about the requirement for advocates to draft court orders.  In July last year in The Headmaster’s SlipperI had cause to revisit the topic in the light of the ‘Submission of Orders in the Single Family Court’ direction.

It is now established practice that the advocates in a case will be responsible for drafting the majority of court orders within tight time-scales, so relieving both the judge and the court service who otherwise would prepare and ‘type it up’. Only those of my era will appreciate fully what a sea-change in responsibility and time this produces. Advocates, who formerly strolled away from court for lunch – their job done – now spend hours in drafting and agreeing the order. Mostly, this work falls outside remunerated time. In other words, the preparation of orders is a pro bono contribution.

As of the 17 March 2014, should Advocacy Forms not be signed by judges on the day of hearing,  Newcastle Combined Court has stated that it will refuse to pass them to Judges for signature. Instead advocates will be required to make an appointment with the Judge (probably prior to court commencing) where the Judge will consider the matter and listen to the advocate’s representations as to why this wasn’t done at the conclusion of the case before leaving court.

The probability will be that the judge did not stay long enough at the conclusion of a case for the information required on the form to be added, and it to be handed in for signature on the day.

Yet it occurs to the blogger that this is yet another example of ‘the administration of advocates’ by the court.

The Advocacy Form was always a flawed concept, proving nothing that could not be better obtained from more reliable, existing sources – a set of instructions, an up-to-date index and a witness list provide all of the information that is needed. The ludicrous issue of a judge certifying start and finish times can, if needed, be spot checked by reference to the court file.

A senior member of the Bar has recently observed that where the court service lose court orders and bundles in a case they will now be required to ‘make an appointment with her and she will consider whether to provide them with another copy’. I agree with her; yet this brilliant and witty ripost shows just how far we as advocates are being pushed by ‘the system’ away from our old collaborative relationship with judges.

With the Quality Assurance Scheme for Advocates appointing judges as ‘graders of advocates’, the historic relationship between the Bar and the bench is now up-for-grabs. Judges and advocates are being manipulated and tied by the court service and government into a new web of bureaucracy. At what point will judicial discretion in relation to the drawing of court orders, the completion of Advocacy Forms, the grading of advocates – and most certainly many other issues – be totally removed, to be replaced by ‘management strategies’?

Non-Court based Solutions

CIArb News / 26 November 2013

recent poll has found that only 51% of the British public would consider trying a non-court based solution instead of going to court if they were to divorce in the future. Resolution, the organisation for family lawyers and other professionals in England and Wales, commissioned the ComRes poll of over 4,000 British adults to mark its second annual Family Dispute Resolution Week.

Mediation, arbitration and other forms of alternative dispute resolution (ADR) provide a cost-effective and faster alternative to costly and time-consuming court procedures. A greater emphasis on ADR will provide the government with the ability to make necessary savings whilst helping to ensure families avoid long, drawn – out disputes, which can have a lasting harmful impact on the adults and children concerned. ADR solutions currently available to families include the family arbitration scheme developed by the Institute of Family Law Arbitrators (IFLA).

Anthony Abrahams, CIArb Director General said:
“It is deeply concerning to hear of the lack of awareness amongst families about non-court based dispute solutions. With the family court system in England and Wales under increasing strain, a greater focus on ADR is essential to make the family justice system more effective. Such solutions as the IFLA’s arbitration scheme have a major role to play in settling family disputes.”

“The government has long stated that it wants the family justice system to work better for families and put children’s needs first at all times. Whilst we welcome their commitment to mediation and other forms of dispute resolution as an intrinsic element of a more effective family justice system, it is clear more needs to be done to raise awareness of such processes. We will continue to work with government and bodies such as Resolution to achieve this.”

Fit for Purpose?

arbitration

 

Going to court is not a simple task. Nor is it made easy.

With that in mind, I have put together two scenarios – to ask one question: are our courts fit for purpose?

Scenario 1

A client’s typical day in court starts shortly after dawn, with the journey to the court centre. As courts sit in town and city centres, locating the building may be a small problem, but finding parking will be treacherous. Since there has been no planning requirement for the provision of court parking, bring plenty of loose change, and be prepared to dash back to your car at lunch time to feed a meter.

The next deadline is at 9.00 am to meet with your advocate.

Allow time to progress through security. Some court centres sport a queue that snakes back through the rain. Join the end of this, but remember to bring your umbrella. Make sure that you leave anything metal behind, and do not have a camera – for some courts may even confiscate your phone. The bigger your bag, the longer the task, so travel light.

Once access to the court centre is achieved, approach the large notice board of cases, listed by court or case number – rather than alphabetically. Deciphering the list is an art, honed over years of practice, so you may find this daunting. You will need your glasses for the small print. But do not rely on the list. Your case may not be there, and if it is, it may be moved. After all, the list is prepared for the listing officer rather than the court users.

The court building is on several floors, with courts arranged randomly. Court 1 may not be where you think it should be. Court 14 could be on any floor, or even between floors. You may choose to head for the restaurant – but beware – the metal seats are challengingly fixed to the floor, and the fare may be reminiscent of prison food.

Finding your advocate is the next difficulty. If counsel has been instructed on your behalf, you will probably meet your barrister for the first time at court. The art is to locate a court where you believe your case is listed, and to wait expectantly. If the barrister has other cases that day, your wait may be long. If not, question how he or she can make a living on the basis of your fee.

Having met with your barrister comes the next challenge – that of finding a room in which to confer. Pressing through a sea of clients and lawyers, you will peer into room after room, only to find that you end up in a corridor. Yes, conference facilities are not what you would expect.

If you have the time and space to speak with your advocate before the hearing, be prepared for him or her to disappear and re-appear – to speak to the ‘other side’ or to finish another case in another court. This is normal. Bring a book to read. Beware the coffee machine – you may need your change for top-up parking, and you certainly will not want to undertake the tortuous journey to find the toilets.

Of course, this is all to be worthwhile if your case is dealt with at this visit. When your advocate returns to tell you that the court has risen for lunch, be not too disappointed. But if the list proves too long, the judge has to leave before the close of business, or your case does not have an allocated judge, then your case may not be reached at all. By way of consolation, you will be well practised for the next time.

Scenario 2

Both you and the ‘other side’ have opted for a private court hearing (an arbitration). When your solicitors arranged this they even gave you a choice of judge. You were able to glance through a glossy brochure or check them out on line. If your case is big enough, you may even get to meet the judge beforehand.

The location for your arbitration was a matter of choice – perhaps your solicitors’ board room with the palms and recessed lighting. Your car safely in the car park, you take the lift to the coffee lounge where you greet your chosen barrister and tidy up the last minute details of your case.

The arbitration starts on time, with introductions and clear ground rules explained. Most of what you wanted to say has been written down in advance, and the arbitrator asks you a few questions for clarification. When breaks are needed, they are taken. Everything is covered, and you conclude the day in good time to miss the traffic. At your request, a written judgment will be emailed to you and your solicitor, together with an award where appropriate.

~~~~~~

In my previous blog I raised the prospect of the privatisation of the public court system – hiving them off to the public sector. Sarah Vine of the Guardian may have got it almost right, save that the Ministry of Justice needs to do nothing more than it is currently doing – namely scenario 1: running courts that are not fit for purpose.

With the Arbitration Act 1996, and the barrage of judicial support that is given to arbitration awards, it seems more likely that clients – in the civil, commercial and family sectors – will simply vote with their feet and take the better option.