The recent decision of the Supreme Court in Barton v Wright Hassall & Co [2018] UKSC 12 has been widely misreported as a case that decides that there are no special rules for litigants in person (LiPs) when it comes to compliance with procedural rules.
In fact, it is nothing of the kind, involving, as it did, an interpretation CPR Part 6 r 15, allied to differing analyses of dicta of Lord Clark in Adela v Baadarani [2013] 1 WLR 2043. It was common ground that the power to retrospectively validate service was a matter of discretion which could only be overturned if there was an error in principal or a decision that was plainly wrong. So, the Appellant had little room for manoeuvre and as three of the Supremes were satisfied that the discretion had been properly exercised, that was that. Lord Briggs’ (supported by Lady Hale) well-reasoned minority analysis of why the Judge had erred in principle such that service should have been validated came to nothing.
For well-known reasons, the number of LiPs navigating their way through the reefs and shoals of the legal system has snowballed over the last 20 years. Similarly, the number of LiPs resorting to mediation has increased substantially and presents its own challenges.
A fellow mediator, recently reflecting upon an unsuccessful mediation, opined that things might have gone a lot more smoothly and successfully without lawyers present. To which I said, and say now, “Careful what you wish for”. Whilst litigants in person are to be welcomed to the mediation process as much as anyone else, experience shows that there are several important factors to bear in mind.
First and most obviously, the LiP does not have the benefit of professional advice, support and guidance. So, a Mediator may be the first person the LiP has come across to, as it were, run their case by. It is essential that the LiP understands, from the off, that the Mediator is not there to advise or evaluate the case and cannot do so.
Next, getting LiPs to produce a digestible Mediation Bundle can be problematic. So, once you are appraised of the dispute, it is often best to ask for what you as Mediator want and suggest that any additional documents are kept to the minimum.
Similarly, with maintaining impartiality and neutrality during the process. It is essential that the LiP understands that that is the Mediator’s stance throughout the process.
So too when an offer is made. It is only human nature for the LiP to say, “well what do you think?”. But whatever you do, do not tell the LiP what you think and avoid any suggestion that you are putting any pressure on the LiP one way or another. There are many ways of getting the LiP to think it out for him/herself.
Recording a settlement is another tricky area. It is not the function of a Mediator to draft a settlement agreement and getting involved in that process, however well intentioned, can be a dangerous minefield. The better practice is to get the LiPs to draft heads of agreement or a list of agreed terms or a memorandum of understanding and get them to sign it.
Keeping a detailed note of what transpires throughout is always best practice and never more so when LiPs are involved. If you are asked to take an offer to the other side, writing it out simply and clearly and having the LiP sign it is a wise move and the same applies to a counter-offer and a any responses.
LiPs can struggle with concepts of “without prejudice” and “confidentiality” which don’t necessarily impact upon the mediation, but it is worth emphasising these aspects of the process.
In summary, mediations involving LiPs on both sides or one side can be challenging and hard work and as Mediator, you need to be on your “A Game” to meet those challenges. There is something uniquely satisfying about a successful mediation in such a context. It is though you have rescued shipwrecked mariners from uncharted seas.