Friday, 25 March 2011

Matthew Lawson

Budget aside, this week seems to have been dominated by conversations about litigation. During a lively discussion at the start of the week with market-leading City litigator Matthew Lawson, partner at international law firm Mayer Brown, I had the chance to discuss the merits (or lack) of compulsory mediation. Unpopular with many divorce lawyers we know, who argue that mediation only works where both parties buy in wholeheartedly and otherwise can be an enormous waste of time and money, compulsory mediation is now rumoured to be on the cards for commercial litigation also, Matthew told me. Would this deny a right of access to commercial justice through the courts?

This, coupled with proposals to charge parties a day rate for commercial court time, he said, part of the Government's longer term desire to make the courts self-financing, begs the question of whether we are heading even further down the route of access to a judicial system only for those with more means to pay? Is this moral, even in a commercial court context?

Matthew argues persuasively that access to a fully functioning court system is fundamental to backing up and enforcing the rule of (commercial) law - and thus a central tenet of a democratic society. He pointed me in the direction of Master of the Rolls'  Lord Neuberger's comments (paraphrased below) giving the annual Bentham Lecture, as reported in The Law Society Gazette (4 March 2011)

"An insidious notion exists that litigation is a bad thing, and that other, more consensual means of resolving disputes are necessarily good things...whilst the development of mediation has been valuable, it cannot be the norm, or approach the norm. Access to the courts is not a privilege but a fundamental right."  

We remove this under-pinning to the rule of law at our peril.


A treat this week was to have the opportunity to catch up over coffee with US arbitration and mediation specialist, and founder member of Mediators Beyond Borders, Thomas Valenti, whom I had managed to miss at last week's Lex2011TweetUp. He was in London to judge the International Academy of Dispute Resolution's International Law School Mediation Tournament, a weekend mediation competition involving 22 schools and 34 teams from all over the world.  

According to the blurb for the event,
'although legal systems may vary around the globe, the appeal of mediation is universal'. 

As a man who has made a career out of arbitration and mediation, it was interesting to hear Tom's perspective on the issue of compulsory mediation.  His view?  That although he is keen for more judges to point disputing parties in the direction of mediation, making it compulsory is often counter-productive he says; the buy-in of the parties being one of the keys to success.
In conversation with Tom, I was fascinated to learn about some of the pro bono projects he is involved with.  One particularly struck a chord, involving coaching children from hard-bitten areas of conflict around the world in the life-skill of mediation, by engaging them in team-based music projects.  The aim is to teach them the value of collaboration in achieving worthwhile results and give them the skills to manage differences of opinion within the group by means of discussion and mediation techniques, rather than resorting to expressions of frustration and violence.  The idea is to give these damaged kids skills that will equip them to cope so much better in their harsh home environments.  Inspiring stuff!

You can follow Tom at

* * *
Sad news this week that Elizabeth Taylor has died, 'marking the end of a Hollywood era'.  At least she lived a full and vibrant life - and some! 

1 comment:

  1. Re mandatory mediation - only a total nutter (and granted, there are a few in the mediation world) would argue that mediation should replace litigation. Mandatory mediation in no way interferes with the right to a fair trial. No-one need agree anything in a mediation, and the option to walk out and have a judge decide the matter is always available - and properly so. Is mediation a good thing? If you value a greater degree of control over the outcome, or are seeking to negotiate on matters outside the narrowly defined legal merits of a case, then yes, it's much better than going to court with its ritualised blood letting and colossal expense.