Lawyer Monthly - December 2021 Edition

this happens in confidential conversations, it does not allow ready academic study or assessment, but it continues to be the most prevalent and effective means of disposing of civil litigation. By failing to recognise the significance of this, those studying and advising on mediation and civil procedure rules again underestimate the value of advisers. In many types of litigation the system of settlement discussions and mediation is working well, and there may be a risk that if rules are imposed to cure perceived problems in other areas of litigation they may damage the parts which are already effective. It is not possible to do justice to this most complex topic in a short article, but perhaps much of that complexity can and should be avoided. If those making the rules have sufficient regard to and respect for those advising, they will see that mediation is being promoted and used, and that most cases settle on some informal basis. The great majority of cases take only a tiny amount of court time, if any. For the balance, rules requiring an early case management session, with penalties for failing to attend, may suffice. The judge can assess what is required and make suitable orders, including a mandatory order that the case go to mediation. In practice, it is hard to identify any more effective procedure. 68 WWW.LAWYER-MONTHLY.COM | DEC 2021 MEDIATION AND ARBITRATION - THE PITFALLS OF COMPULSORY MEDIATION: TRUST YOUR LAWYER should be made compulsory in certain types of case. As an aside, and perhaps contrary to the above, some local procedures have been established which do require parties in certain forms of litigation, the majority of whom are unrepresented, to attend for a combined conciliation and case management meeting. It is made clear to all that failure to attend will result in the claim or the defence being struck out and judgment given accordingly. It has been found that a surprisingly large percentage of parties fail to attend, and a significant number of all cases commenced, perhaps as high as 25%, are concluded immediately. There is provision for the decision to be set-aside if good reason is shown. It seems that this has not yet been challenged as a breach of Article 6. Those reading this may be familiar with other forms of alternative dispute resolution; early neutral evaluation, road traffic act protocols, ACAS conciliation and so on. These show that early intervention is practically possible and may be effective. What seems not to be discussed when the mediation is considered is the simple process of settlement. Just as a competent adviser will draw the client’s attention to the need to consider mediation, so they will discuss the possibility, and probably the advisability, of pursuing settlement. Because Ann Benzimra Partner, Fieldfisher Aspen House, Central Boulevard, Blythe Valley Park, Birmingham B90 8AJ Tel: +44 (0)330 460 6592 E: ann.benzimra@fieldfisher.com fieldfisher.com Ann Benzimra is a leading litigation and dispute resolution lawyer with vast experience in mediating a wide range of disputes, most of them achieving a successful resolution. Ann is known for her practical approach with a clear focus on the cost benefit analysis of litigating. Fieldfisher is a multinational law firm with a sizeable team of leading dispute resolution lawyers providing specialist commercial advice on a wide range of conflicts and contentious issues. The route they take depends on the client's desired outcome and their commercial priorities, enabling them to offer litigation, arbitration and all forms of ADR to achieve the best and most cost- efficient outcome for clients.