Sir David Foskett, Chair of the CMC, was pleased to be asked to deliver an address to the Standing Conference of Mediation Avocates on 3rd December 2019. The text of his address is below.
‘The Advocate and Compromise’
When I set out on the advocacy road in April 1973, compromise was the furthest thing from my mind. I was looking forward with intense anticipation to demolishing witnesses with my scything cross-examination, having juries eat out of my hand with my stylish oratory and judges listening on every word of my incisive submissions of law.
I still have the copy of the First edition of ‘The Art of the Advocate’ by Dick du Cann, published in 1964, that I bought when I was thinking about a career at the Bar. Its pages are pretty yellow now, but much of it remains the compelling read it was all those years ago even though the examples of questioning given are from a different era and some of the language used might not be considered appropriate by today’s standards. The book cost 3 shillings and sixpence, 17½p under the current monetary regime.
It was there I first read of Norman Birkett’s opening question in cross-examination in a murder case in 1930 of a surprise expert witness for the defence who described himself as an engineer and fire assessor. The prosecution case was that the defendant covered up the murder by setting fire to the car in which he had put the dead man and that to facilitate the fire he loosened a brass nut on the petrol pipe. The expert claimed that it could have come loose in the fire. Birkett’s first question was –
“What is the coefficient of expansion of brass?”
The expert could not answer and never recovered from the shock of being asked such a question. I was looking forward to the day when my brilliance shone through in a similar fashion. The nearest I ever got was when a former Surgeon to HM The Queen and former President of the Royal College of Surgeons, who I was cross-examining as an expert witness in a clinical negligence case, said to me “You do ask difficult questions”!
Before returning to the point of all this, I cannot resist quoting one passage in the book to you that demonstrates that barristers and judges do not have a monopoly of wisdom in a courtroom. The passage reads as follows:
“The best question from a jury was put to an advocate in the middle of his final speech. He was defending two men from East London charged at a county quarter sessions with possessing housebreaking implements by night. They had been seen at 3 o’clock in the morning in a motorcar, which was later found to be stuffed with the implements. When the police appeared on the scene they decamped across the marshes. When finally caught they said they were interested in ornithology and looking for partridges’ eggs. To substantiate this defence, one said that he had canaries at home which sat on the eggs and hatched them. Neither Counsel nor the Judge questioned the improbability of this explanation. Defending counsel was waxing eloquent on the perils of law-abiding ornithologists being arrested by overzealous police officers when a juryman said to him:
JURYMAN: Excuse me; mind if I ask a question?
COUNSEL (who minded very much could not say no): No, please do.
JURYMAN: Do you mind telling me how canaries sit on partridges’ eggs?”
Dick du Cann had a very distinguished career as an advocate, became Chairman of the Bar in 1980/81 and was a Bencher of Gray’s Inn, the Inn of which I was privileged to be Treasurer last year. It is one of life’s pleasant circularities that, following my retirement as a full-time judge earlier this year, I have joined as an arbitrator/mediator the Chambers of which his elder son, Christian, is a member.
However, enough of that. Back to the point. As I have said on one or two occasions recently, the opportunities for the forensic triumphs of which I had dreamed in those early years proved to be few and far between – most parties wanted to settle their cases rather than fighting them. So I had to learn the art of negotiation. I had had no tuition in that art other than the words of one of my pupil masters when he told me never to display any doubts about the strength of my own case and always to look doubtful about the prospects of achieving a compromise throughout the course of any discussions. Sometimes that was easier said than done. Nonetheless, for many years I negotiated with various opponents in cases of many sorts, doubtless continuing in the manner to which I had become accustomed and the manner in which many Leading Counsel who led me when I was a Junior barrister had adopted themselves. If my recollection is correct, I had been a QC myself for 10 years before attending my first mediation as an advocate.
I was surprised when the mediator telephoned me to talk about my client’s position before the day of the mediation and I went along to the mediation with the same general assertive stance as that which I had adopted in negotiations for the previous 30 years or so. I remember little about the circumstances of the mediation itself other than we were holed up in a hotel somewhere a long way from home until about 10 o’clock at night. Settlement was achieved and we all went home pretty exhausted.
One of the parties was represented by Tony Allen, then still a practising solicitor, but already a fledgling mediator. We got talking and in due course I was persuaded to train as a mediator myself. I should, I suppose, add that I had been a member of the Civil Procedure Rule Committee between 1997 and 2001 which had the task of putting together the rules to give effect to the Civil Justice reforms promoted by Lord Woolf. It was probably my well-known interest in the law and practice of settlement that led to my appointment on the Committee. But a part of those reforms embraced the role that ADR generally, and mediation in particular, could play in getting cases resolved and out of the over-crowded court lists.
So these were the formative events leading to my becoming a mediator myself in the few years before I became a judge. Prior to that occurring, I had been sceptical about mediation as a process. I suppose every lawyer, certainly from my generation, had been brought up to expect and respect the discipline and structure of the court process which did, in the vast majority of cases, lead to settlement of the dispute. The apparently less structured process of mediation did not seem to accord with one’s perceptions of how best to prepare for and secure a deal. However, I came to recognise that the flexibility of the mediation process was its strength, not a weakness, and it could produce results that traditional negotiation between lawyers might not.
What I do remember very clearly from a number of the mediations that I carried out was that keeping the advocates from saying too much in the customary adversarial form was often something of a challenge. I do remember thinking that the joint opening plenary session often held a few hostages to fortune for that very reason. Interestingly, I have sensed that there is now less enthusiasm for exchanging position statements and for that opening session to take place than there was before I became a judge.
I also had to deal with some of my colleagues at the Bar whose negotiating stance was to say that if an acceptable offer was not made by a certain time they and their team would walk out. I think I can claim to have prevented that occurring on each occasion it happened, but it illustrates the role that at least some advocates at a mediation saw as their role in those days.
In 2007, because of my appointment as a judge, I took an enforced break from active mediation until earlier this year. Has anything changed in the meantime?
I cannot claim sufficient experience of mediations since I re-entered the field to give any view from a closely-informed, wide-ranging perspective, but one mediation I observed had Counsel on both sides present. There was no doubt to my mind that each, whilst fully representing the interests of their own side, did so in a far more constructive and conciliatory way than I had been familiar with some 12 or so years previously. It was a particularly sensitive case and they each approached it sensitively and without over-statement. On the other hand, I have also seen another very hard-nosed dispute where a hard-nosed stance was taken by the parties and their lawyers.
When I departed the mediation scene, the SCMA was in its infancy and it was not until 2011 that the Bar Council offered members of the Bar training in mediation awareness and mediation advocacy. And the market has spawned several books on mediation advocacy since then. After Andrew invited me to give this talk, I bought the second edition of Stephen Walker’s book entitled ‘Mediation Advocacy – Representing and Advising Clients in Mediation’. It cost me £75. Andrew, I had not then discovered the third edition of your book entitled ‘Effective Mediation Advocacy – A Guide for Practitioners’ which would have cost me considerably less. Equally, I wish I had discovered your book ‘How Judges Decide Cases: Reading, Writing and Analysing Judgments’. It would have made every day of my nearly 12 years as a full-time judge so much easier!
But joking apart, the need for those representing parties at a mediation to adopt a different tone from that which they might adopt in court was plainly recognised by people such as Stephen and Andrew and others and the guidance now given, either in the literature or on training courses for lawyers, is immensely valuable to the mediation process. I rather liked what Stephen says at the beginning of his book:
“Mediation is not a pseudo day in court. If the parties want to make peace they come to mediation. The only purpose of going to mediation is to make peace. That requires a different skill set and a different mind-set.”
I agree that a mediation day is not a pseudo day in court. It is, however, a day when the parties and at least some of their advisers, if they have them, meet and, even with the best will in the world, there will be some initial hostility and posturing that needs to dissipate if there is to be a true meeting of minds. That applies to the lawyers present as well as their clients, occasionally even more so.
In present company, much of what I am about to say will be so well-known almost not to be worth saying. However, repetition of some well-established propositions is never a bad thing and I suppose my absence from the scene for some years enables me to put things in a way that simply occurs to me and to others it may not.
I should, perhaps, preface what I say by stating unequivocally that my personal direct experience is only of civil and commercial mediations. Since becoming Chair of the Civil Mediation Council I have attended two excellent gatherings on workplace mediation and community mediation and I have learned a great deal from them. I am relatively new to the concept of peer mediation, but it’s something of which I wholly approve: sadly, society needs it and those trained in it at an early age will probably be worth their weight in gold as the years progress. I am, of course, familiar with the concept of family mediation, but it is not an area in which I have played any active part. My perception is that there is less scope for the professional advocate’s role in each of those forms of mediation than there is in the civil and commercial spheres. Since this talk is to the SCMA, it is not inappropriate of me to focus on those mediations where an advocate is likely to attend.
Before I say a little about what, in my view, are matters to be taken into account by advocates who attend mediations with their clients, I might just make a brief reference to the invigorating talk given by Nicholas Chambers just a week ago which I attended. It was entitled “Settlement: Is the future with the Judges?” Nicholas was a fellow member of the Civil Procedure Rule Committee in those early years. As Bill Wood has said on a recent LinkedIn post (which he headed ‘Move over Mediators: here come the Judges’), Nicholas argued in his talk that “the future of ADR was much more likely to lie with brisk, evaluative hearings before judges than with mediation.” He was arguing this purely in the context of civil and commercial disputes and drew on the effectiveness of judicial neutral evaluations (‘JNEs’ for short) in family and employment spheres. If he is right, there will be, perhaps, more of a role for the advocate in that form of ADR than in mediation in the sense of the term “mediation” that we all understand. Will it require a different form of advocacy from that required at a mediation? Will any such advocacy be more akin to that required at a trial or will it require different skills? Will it spawn yet more training courses for advocates?
There is not time for me in this talk to engage all aspects of the debate to which Nicholas’ recent talk gives rise, but I will offer a few preliminary observations as someone who has been a full-time judge, who was also trained as a mediator at a time when an active advocate and a part-time judge and who is now back in the mediation community offering the benefit, if benefit be the right word, of my accumulated experience in both respects.
Leaving aside certain issues to which I will turn briefly in a moment, it is to be noted that what Nicholas is contemplating in relation to JNEs is “a State provided service”, much as is effectively provided in the context of the family and employment jurisdictions – and indeed the small claims mediation schemes that operate in various areas of the country. I am assuming that no compulsory court fee will be charged in the scenario he has in mind. On that basis, what must be envisaged is the deployment of largely full-time judges (who, it is to be assumed, will have had “special training” if the employment dispute scenario is adopted) to operate as those who provide the neutral evaluation and who, if the case does not settle, will need to be recused from hearing the substantive trial. This is the only way in which the evaluation service will be provided free to the parties.
The neutral evaluation will need to be given by judges at the right level in the overall hierarchy of the judiciary, and indeed with the right experience, for the evaluation to be treated with respect by the parties. Equally, the case would presumably require to be significantly advanced in terms of its preparation by both sides to enable the evaluation to be properly informed.
I do not suggest that such an arrangement is impossible to put in place, but it will require the provision of resources that may not be readily available in the current climate. If they are available, I can see how such a scheme might be operated in a major court centre where there are judges of the relevant levels who sit in the same court for much of the time. However, if something of this nature is contemplated in, for example, the Queen’s Bench Division of the High Court in London, I have serious reservations about its practicability.
For the 4 years before my retirement I was Judge in Charge of the Queen’s Bench Division Civil List. This meant that I was largely responsible for supervising the operation of that list and for judicial deployment for the civil cases heard (other than privacy and defamation cases) within it. For much of that time the complement of full-time judges was less than we required and, whilst the situation has improved recently, the division is still under-staffed judicially. The cases that proceed through that court comprise a wide variety, although a good deal of it is clinical or other professional negligence, personal injury and general commercial or employment-related. In many of those cases, incidentally, there has been an attempt at ADR, quite frequently through the medium of mediation, because of the directions given by QB Masters during the case management stages. In addition to the judicial work in court (including the preparations before the hearing and the preparation of judgments thereafter) there is a good deal of work that is required to be done on paper, particularly in respect of proposed appeals from the county court. I have to say that had it been necessary for me for the purposes of JNEs (i) to find from the pool of High Court Judges available to me each week judges of the relevant experience for a particular case and then (ii) to provide them with time to read and digest sufficiently the material in even, say, a case destined ultimately to last for only about 4-5 days before either giving a neutral evaluation “on the papers” or giving one at a hearing, would have stretched resources considerably. Furthermore, if the case did not settle, that judge would no longer have been available to handle the substantive trial which would limit the pool of judges to choose from. Handling a neutral evaluation in a case involving one or more of the increasing number of litigants in person would also have been a logistical challenge.
These potential deployment issues could be overcome by getting former judges such as myself, who no longer sit full-time, to give the neutral evaluation or indeed by appointing those who are in practice, but sit as Deputy High Court Judges, although in that latter case it might be said that the Deputy judge has less experience than a judge who is or has been full-time. Evaluators in either of those positions would presumably be paid their usual daily fee by the State for which there is a budget and it would be cost-neutral from the parties’ point of view save in respect of the costs of preparing for and participating, if required, in the evaluation process.
Absent arrangements such as that, I can foresee those potential practical difficulties in one of the major civil litigation centres in the country. I believe it would do so even if there was a full complement of High Court Judges because of the need to deploy them in lists other than simply the Civil List of the Queen’s Bench Division, both in London and across the country. There is also the question of whether, in fairly major litigation, parties who are competently advised would find the non-binding view of the neutral evaluator at a late stage of the proceedings that helpful. If it becomes a regular feature in all litigation, the process itself may well require some evaluation and appraisal over a period of time, but it should be noted that the parties will not be able to choose the “State-provided” evaluator whereas they could, if they paid for assistance from outside the judicial system, choose their evaluator or mediator.
Finally, of course, evaluation in this way is not mediation. It is predominantly litigation-focused. Mediators often encourage parties to look outside the confines of the particular litigation and indeed mediators often learn about issues that usually do not figure in the “public” presentation of one party to the other. That can help facilitate a resolution of the issues. As we all know, the intervention of a trusted intermediary can break down barriers that otherwise seemed insurmountable.
Whilst the case of Lomax v Lomax demonstrates that the court may direct a neutral evaluation in any case, and indeed one can see this occurring in suitable cases, it will not, in my view, spell the end of mediation in civil and commercial litigation. Nor will not spell the end of mediation advocacy to which I will now return.
Let me list a few things that an advocate present at a mediation may care to take into account when assisting his or her client, not necessarily in order of importance.
I cannot, of course, speak for every mediator, though I suspect I speak for most, when I say that aggressive advocacy in the mediation context is rarely the most persuasive, either in terms of persuading the other parties of your client’s position or, so far as it is achievable, persuading the mediator to adopt a particular approach to the mediation. Some clients may like their advocate to be aggressive and assertive, but it is usually counter-productive and corrodes what should be a conciliatory process. As you know, my most recent background has been that of a judge and I have had almost daily experience of being at the receiving end of court advocacy for about 12 years which is, of course, often confrontational. Confining myself to the civil jurisdiction for this purpose, my experience has been that the calm, measured submission is invariably the most persuasive even in the adversarial courtroom context. It is also the easiest to listen to. Why should it be any different in the mediation context? If peace is the objective, opposition-bashing will usually lead down a different path.
I have often advised those embarking on a career in advocacy to take the opportunity, if it presents itself, of sitting with a judge for a day or two. They can learn from both good and bad advocacy and there is plenty of both about. It is, I recognise, not quite so easy to obtain the same experience in the context of mediations.
As with the advice one might give to any communicator in any number of situations, it is as well to ask yourself how you would feel to be addressed in the manner you are considering addressing someone else at the mediation.
It is also important to consider the purpose of anything said. The ultimate objective, if the mediation is approached in good faith, is to obtain a resolution that is acceptable to all parties. I have sensed on occasions that advocates see it as necessary to try to get the mediator onside so far as the strength of their own side’s case is concerned. There may be some legitimacy in this approach if it has been agreed in advance that, failing the achievement of a settlement through negotiations, the mediator will be invited to provide some evaluative response. However, many mediations do not begin with that objective in mind and, in any event, even if that situation should emerge during the mediation process, there is no reason why at that stage the advocate should not say to the mediator that at the earlier stage in the process a more moderate approach was being adopted, but that the reality, from his side’s point of view, is that the strength of the case is greater than it was represented during the more conciliatory part of the proceedings. Whether the mediator is persuaded of that will depend on the circumstances, but the great advantage of the flexibility of the mediation process is that it permits this kind of approach being adopted. In all mediations I have conducted, my professional hinterland has involved some degree of judicial activity of which the parties have been aware. I have always said to the parties, particularly the lawyers, “don’t treat me like a judge, I’m not here as a judge and I don’t need to be persuaded of anything.” Indeed I have often gone on to say that one luxury from my perspective is that I do not have to make a decision or write a judgment at the end of the mediation. I suspect many other mediators will have their own formula for conveying the same essential message.
In my view, the starting point for any advocate in a mediation is that the target of persuasion is “the other side” and, perhaps more importantly, those on “the other side” who are truly making the decision about settlement. Effective advocacy in a mediation chooses the right target and uses the right language for that target. Whilst I know that views differ on this, in my view, descending into the legal and evidential merits is probably not very productive – simply recognising that each side will have its own views of the merits of each case is a good, realistic and conciliatory start. No two disputes are precisely the same, but saying expressly that the search at the mediation is for the common ground is a good way of setting the tone.
Whilst I hesitate to say it in present company, I would suggest that express reference by an advocate to any “decision analysis” guidance obtained for the client by the client’s legal team would not be a persuasive piece of advocacy vis-à-vis the other side, no matter how useful it might be to the client in deciding on the risks involved in the litigation. There will be many occasions when an advocate for one party will consider that the other side has not taken on board a particular factor in its own appraisal of the risk/benefit analysis. In my experience, it is far better that the mediator’s attention is drawn to this in a caucus session rather than being expressed openly at some joint meeting. The mediator can then raise it in some less overtly challenging situation during a “reality testing” session with the other party. It is an example of where the silence of the advocate at a particular moment can be an effective tool.
The other side of that coin is that it must be a given, albeit sometimes overlooked, that an advocate for one side in a mediation needs to consider how the dispute appears from the viewpoint of the other side. It will be difficult to achieve a meeting of minds if this is not done and some part of the advocate’s advocacy may need to be addressed to his own client to ensure that the client appreciates how the other side will be viewing the dispute. The client does not need to agree with their approach (and almost certainly will not), but getting a deal will require at least an understanding of that approach and some attempt, albeit oblique, in trying to respond to it.
Another aspect of the advocate’s role is how to respond when “the other side” is speaking. If a conciliatory approach to the mediation is what is called for, which it is, the statements made by or on behalf of the other side must be listened to attentively and with courtesy. The advocate should ensure that the client does the same, whatever inner feelings there may be. I can remember many occasions when I was in practice at the Bar when an opponent would laugh at a suggested resolution of a case, or throw back his head in disdain, sometimes to come creeping back 30 minutes later with much the same suggestion. Never permit yourself or your client behave in that way. Tell the mediator later what you thought of it if it is important.
But the other feature of this essential plea for courtesy and understanding is this: listening attentively and courteously may bring home to the advocate and the client some point that previously had either been overlooked or relegated to an issue of little importance. Seeing how the other party views the point can have the effect of modifying a previously held position and moving the landscape of settlement. The advocate can play a crucial role in persuading a client to give the point more weight in the scales than had been the case previously.
I doubt that any of the matters I have mentioned are news to those who are experienced mediation advocates. I suppose it may merely be a function of the fact that I have been part of the litigation and settlement scene for a good many years that the concept of a “mediation advocate” is a rather novel one from my perspective. Over the years as an advocate, I became aware of the need, for example, to cross-examine some witnesses very gently, others more vigorously, to make submissions to some judges in a particular way, but not in the same way to others. In other words, to adapt one’s style to the situation and to the personalities involved. Had I continued in practice, rather than going to the Bench, I suspect I would have attended more mediations as an advocate and probably continued acting as a mediator when appointed by parties to do so. I am sure I would have adapted my negotiating technique in the light of the experience gained at mediations. As it was, whilst the role of a judge is different, I am pretty certain I adapted my own style of dealing with cases by reference to their subject-matter, the parties involved and, where Counsel appeared, to how the Counsel behaved. Adaptability is, to my mind, a very important characteristic for anyone involved in the dispute resolution business. I accept the proposition that mediation advocacy is different from court advocacy, but my starting-point would be that any advocate ought to be able to adapt to the mediation without becoming a specialist. Some additional training might not go amiss because of the techniques required, but is it necessary to have a specialist cohort?
I expect I will be better informed on this issue when I have conducted more mediations with advocates present in the present climate. I am prepared to be persuaded. When I started out on the advocacy road I mentioned earlier, there was no such animal as a “costs advocate”, but so specialised and complicated have the various costs regimes become that there are now barristers, including Silks, who specialise in costs advocacy. There are those who specialise as Court of Protection advocates so there is now a growing tendency for these kinds of specialism so perhaps I should not be surprised at this development.
However, any move that genuinely helps parties to litigation to resolve their differences effectively and with the minimum of bitterness must be a good thing and if specialist mediation advocacy helps, then it is to be welcomed.
Things do, of course, change. Let me conclude by asking whether Norman Birkett would have asked the same question in cross-examination now as he did all those years ago? I was always taught (and advocacy trainers of young barristers continue to teach) that you don’t ask a question in cross-examination to which you do not know the answer. The evidence suggests that Birkett would not have known the answer. It looks as if he struck lucky with an expert, if he was indeed a genuine expert, who did not have the wit to say in response to the question “not off-hand, but I know where to look it up and how to apply it to the issue the court is concerned with.” My question is, in any event, irrelevant in today’s times because the expert’s report would have been disclosed and the relevance (or lack of it) of the coefficient of expansion of brass would have appeared in the report.
However, I have little doubt that in that generation of advocates, the idea of attending a mediation (which was an unknown concept in litigation at the time) would have involved envisaging an alien world and the idea of doing anything other than adopting a confrontational posture in negotiations would have been unknown. But we have moved on.
In the Chapter in his book entitled ‘How to build a mediation advocacy practice’, Stephen Walker says this:
“Are you thinking that mediation advocacy could become a full-time job? If you are, you are probably being unrealistic. At least until mediation becomes the norm for dispute resolution and litigation becomes a form of alternative dispute resolution.”
Will that day ever dawn? Well, as Bob Dylan would say, “The Times They Are a-Changin’”, adding almost certainly in response to the question, “The answer, my friend, is blowin’ in the wind, The answer is blowin’ in the wind.”
 Professor Andrew Goodman.