Downgrading Civil Justice

Mediation ‘is not about just settlement’, said Professor Dame Hazel Genn last December. ‘It is just about settlement.

My exclusive report here of Genn’s Hamlyn Lectures encouraged many readers to ask if I could provide them with a text of what she said. I explained that I was not in a position to do this — though the lectures would be published in book form by Cambridge University Press.

The book is now out. But I’m sorry to say it does not have the fireworks I remember from the lectures.

Genn repeats her withering criticism of the view expressed by Lady Scotland as a minister in the Lord Chancellor’s Department in 2000. Scotland had suggested that courts should not be asking whether a dispute was suitable for mediation/arbitration, asking instead whether it was suitable for adjudication.

Perhaps everything could be mediated and the courts could become pubs and restaurants. But should they? And, realistically, if there were no more courts, why would any defendant agree to mediation?

But the book does not have the edgy feel that encouraged me to describe the lectures as “excoriating”.

So has Genn been got at? No, but she does seem to have toned her remarks down for publication. As she explains, 

Some months have passed since I delivered the lec­tures and in the intervening period, as a result of both oral and written communications, I have realised, perhaps to a much greater extent than at the time, first how controversial were some of my views and second how very strongly those who agree with me and those who disagree with me feel about the subject.

Not wishing to over-dramatise what is in the end a difference of view about means when everyone is pretty much agreed on the end, it is absolutely clear that these are issues in need of some solid evidence and fresh debate.

It is also clear that the schism in opinion about what the civil justice system should be doing and how it should be operating is more pronounced than might appear from published material.

Moral: lectures can be more interesting than books.

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