Woolf rails against lack of mediation

Lord Woolf has made an impassioned plea for lawyers to mediate more and litigate less, and indicated that the remit of mediation in public law cases should be widened.Giving judgement in a recent Court of Appeal action - Frank Cowl & Others v Plymouth City Council - the Lord Chief Justice said: 'Insufficient attention is paid to the paramount importance of avoiding litigation wherever possible.'He went on to say that courts may have to hold inter-partes hearings 'at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the court'.Such hearings were envisaged following the civil justice reforms, but Lord Woolf's stated aim of using this case to highlight the point suggests he is impatient to see courts encourage mediation.The Frank Cowl case involved a group of pensioners who were seeking judicial review of a decision by the city of Plymouth to close down their nursing home.

The action had cost too much and gone on too long, Lord Woolf said, adding: 'Today, sufficient should be known about ADR [alternative dispute resolution] to make the failure to adopt it, in particular when public money is involved, indefensible.'Last year, the Lord Chancellor, Lord Irvine, introduced a 'pledge' for government services to use mediation where possible; but the pledge specifically excluded public law cases such as this.Lord Woolf appears to have cast any exclusion from mediation for public law cases aside, saying: 'The courts should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between parties could be resolved outside the litigation process.'Tony Allen, a director of the Centre for Effective Dispute Resolution involved in public law, said that although the government pledge excluded judicial review, 'there are plenty of public law cases where mediation should be used', adding that there is an increasing number of government departments looking to use mediation.A spokesman for the Treasury Solicitor's department said: 'The pledge enjoins us to look at every case in terms of mediation, and identifies areas where mediation is inappropriate.

But we are looking at cases on an individual basis and will look at what the courts are saying in determining which cases to mediate.'

By Jeremy Fleming