The Civil Justice Council has published an interim report on ADR in Civil Justice. They invite submissions on that report ahead of a final report to be submitted to Government.
One of the topics discussed in the report is that of pre-action protocols (para 5.10 at page 25). The report states protocols “have undoubtedly influenced parties to exchange adequate information so as to make it reasonably possible for meaningful settlement discussions to precede and if possible forestall the issue of proceedings.”
I question that conclusion. In my view the protocol system sets off the process of negotiation on completely the wrong foot. It involves large unnecessary expense, frequently causes anger and confusion on the part of the recipient of the protocol letter and delays the process of settlement.
When a potential claimant goes to see a lawyer that lawyer, consciously or unconsciously, pictures herself in front of a judge arguing the case, thinking in terms of causes of action and the evidence required to prove the claim. The lawyer narrows down what the client is saying to that which is ‘relevant’, to what is important to the legal process. The protocol requirement to set out positions at an early stage re-inforces that way of thinking.
When a potential defendant receives a protocol letter it does not usually feel like it is intended to facilitate negotiation and settlement. It feels like a punch in the stomach.
The protocols are well meaning and in the context of litigation make sense. They require parties to set out their legal positions and the justifications for those positions. This seems reasonable to civil litigators, the judiciary and the civil justice system generally.
There is however here a paradox. In writing a protocol letter rights based attitudes – arguments – are being re-inforced. Settlement is not being encouraged.
What is needed at the beginning of the dispute resolution process is an interest-based approach to negotiation.
In mediation we allow the clients to talk about whatever they want, whatever is important to them. We don’t simply focus on the narrow legal issues that are important to the judicial system. As anyone with a reasonable experience of mediation will know, progress is only made at that stage in the day when parties abandon discussion of legal and evidential issues, and start explaining what they actually want, listen to what the other side wants and begin to think about what they can live with.
So, using a boundary dispute as an example, my suggestion is that the first letter that should be written by a solicitor to a person on the other side of a dispute should go something like this:
“We understand from our clients that there are problems between you over the access to their property and the boundary between you at the rear of the houses. Our clients would like to get together with you (and your solicitor if you have one) to try to understand what is important to you and to explain what is important to them. They would like to sort this out. We understand that this has been going on for some time and that the relationship is difficult between you. We therefore suggest that we have a meeting facilitated by an independent mediator to try to resolve this unfortunate dispute.”
It is amazing the number of cases where lawyers have not even spoken to each other prior to mediation. There are just masses of emails repeating and negating positions, and getting bogged down in the process of litigation. The system encourages this. We need to get away from it. Negotiation and mediation should be the primary focus of dispute resolution. Litigation should be the alternative.
On the one hand, this sounds radical – it is a completely different approach. On the other, interest-based negotiation is familiar to all experienced negotiators and is the norm in virtually every other sphere of life except litigation (and politics!).
If mediation doesn’t result in a solution, then that is the time to start writing protocol letters. The cost of writing such a letter should not be allowed until after mediation has been attempted.
Written submissions on the report should be submitted by Friday 15 December 2017 to firstname.lastname@example.org.
For more on interest-based negotiation see the classic “Getting to Yes: Negotiating Agreement Without Giving In” by Fisher and Ury.