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Settlement by lawyers

8.33The Law Society urged more measures to promote earlier settlements.894  In defence of solicitors, it said that if they were only motivated by money, they would not settle 95% of cases, albeit at a late stage.  It acknowledged that court-door settlements were particularly inefficient as they do not save very much in costs unless the trial was scheduled to last some weeks as brief fees and cancellation fees for experts often still had to be paid.895

Court annexed mediation

8.34The Law Society was disappointed that Lord Woolf did not make specific recommendations on a court-based pilot project in mediation.  Until there was more research into ADR and a wider network of mediators, a judge would not be able to properly assess a litigant’s refusal to undergo ADR.896  The Law Society recommended proper funding for experimental schemes of court annexed mediation “to gather enough experience to demonstrate what benefits can be secured”.897

Commentary on the Woolf Report

8.35No mention was made in the Woolf Reports of the option of a “Multi-Door Courthouse”.898  The Beldam Report of the Bar Council on ADR899 suggested that this option “demonstrates the usefulness of mediation as an adjunct to the traditional court process and to provide a possible target of employing court facilities to assist parties to resolve disputes in the most effective manner ....”900  That report also recommended “Settlement Weeks”.901  There is no mention in Lord Woolf’s report of this option.  Woolf criticised the present court system as being unequal, expensive, uncertain, slow, complicated, fragmented and adversarial.

8.36Woolf acknowledged that judges and court personnel will need training to implement the proposals.  Nothing was said about training for solicitors.  Unrepresented litigants will be helped by videos, electronic kiosks and library facilities.  There would also be court based advice centres.  Woolf did not go so far as to propose the integration of mediation services into the court service or court ordered mediation.

894 The Law Society’s first submission to Lord Woolf’s Review of Civil Justice, March 1995.

895 Making Justice Work, supra at paragraph 8.1.

896 “The Law Society’s Provisional Response”, August 1995.  Paragraph 9.

897 Ibid at paragraph 3.24.

898 This would be a one-stop shop for giving information on dispute resolution options and referring clients to the most appropriate section of the court to handle their case.

899 25 October 1991.  See Arbitration, August 1992, 178 for a good summary.

900 Ibid at 182.

901 This is where cases are chosen  from the court lists and attempts made to try and settle them with the assistance of mediators.  The judiciary and lawyers need to support it, as considerable numbers of cases can be chosen in one week for this exercise.  

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