Reflections from SITGES


Mediation: Return of legal realism?

I found the course stimulating and challenging. It gave me a real insight into mediation as an overall psychological process, with the intention of enabling a resolution which was acceptable to the parties, as opposed to one begrudgingly accepted in conventional negotiation or imposed by a Judge. Having attended mediations as a practitioner, I had moved from my initial perception of mediation as a type of joint settlement meeting, bizarrely moderated by a chummy character with a packet of chocolate biscuits. However, the course gave me considerably more insight into the nature and value of mediation.

At a personal level, I have reflected on really how poorly in certain ways litigators and indeed the law addresses the process of dispute resolution in contemporary society. I was surprised to find that so many lawyers were still locked into stereotypical positional negotiation. Similarly, the law’s approach to significant issues might be seen to be arcane and backwards looking. Often the law can be seen as an existing corpus with little grasp of the real dynamics of a dispute in its contemporary context. In an earlier blog reflecting on the EL trigger litigation, “IEG v Zurich: Insurance Law for the Digital Age?”. We suggested,

“Reading the speeches of the Supreme Court in IEG v Zurich, it is striking how all the justices attempt to fit what can be perceived as an obviously fair and reasonable solution into the historic rubric of insurance law, even though such law developed in very different times and commercial practices.

The advantages of the digital age will only be fully exploited if it is understood that digital process is not a means of supporting a traditional approach, but rather a different approach in itself reflecting the need for much greater speed and flexibility in the exchange of information”.

There are interesting historic parallels here. Different structures and approaches have developed because of a perception of the inability of the existing processes and law to deliver satisfactory solutions in developing social and economic conditions.

An example close to home for me is the Liverpool Court of Passage, a court of voluntary jurisdiction which was established in Liverpool as the Port developed through the Industrial Revolution. The delays and arcane practices of the traditional courts were not consistent with the type of swift resolution necessary to serve the parties’ commercial interests. By way of contrast with Jarndyce v Jarndyce, the Liverpool Court of Passage in its prime prided itself in proceeding from incident (not issue of proceedings) to judgment in less than three months.

Similarly analogous is the development of legal realism in the United States of America, in particular through the jurisprudence of Oliver Wendell Holmes Junior and Professor Karl Llewellyn, a remarkable Professor of Law at the University of Yale. Comparable issues had arisen with the rapid development of the American economy in the late 19th, early 20th Century, and a perception that legal processes and the law were not able to deal adequately with the demands of rapidly growing commercial entities. The theory of legal realism is subject to different interpretations, but can perhaps best be described as focusing on how a Judge actually resolves a case, including the human, political and moral perspectives, as opposed to the traditional approach characterised as legal formalism. Legal formalism presupposes that a Judge reaches a decision based on a mechanistic application of the law to an objective process of factual finding. According to its proponents, legal realism attempted to define what Judges actually do, as opposed to what they say they do.

It could be argued that a similar position in the early 21st Century has arisen in the United Kingdom to that seen in the United States, when legal realism emerged. The legal system is arguably more conducted for the benefit of litigators and judges, rather than the litigants. It is not therefore surprising that mediation, with its emphasis on listening to the parties and identifying the issues which are important to them, is seen as increasingly attractive.

Legal realism is often characterised as a failure as legal formalism continued at least at a conventional or dogmatic level to be the accepted approach. However, this is perhaps to misunderstand the relevance of legal realism, which could never entirely replace a traditional approach, but acted as a perspective so as to challenge and modify the traditional approach. It is possible that the development of mediation and greater understanding of it will have a beneficial effect on more traditional forms of dispute resolution .