is running by completing the purchase. Moreover, the purchaser on acquiring possession might him-self be advised to bring matters to a head by himhim-self applying for registration as owner of the land in question. If a dispute emerges, every effort should be made to resolve it without litigation. […] I find myself in agreement with the judge’s observation that it is simply not clear why the parties have been unable to resolve this matter. He goes on to speculate about whether the driving force is the legal costs. If that is so, and it has in the past been found to be the reason for an appeal in a boundary dis-pute, it highlights the need for professional advisers to think about some kind of strategy such as I have suggested above.” See further, on family provision disputes, Lilleyman v Lilleyman [2012]
EWHC 1056 (Ch).
31 [2006] EWHC 1678 (Ch), para. 221.
B. The limits of proportionality
Self-indulgent voyages through the legal system are of course to be discouraged. The courts are a limited resource and should not be exploited as a soap box for personal atti-tudinising or an instrument of vengeance. One must beware however of reducing claims for the restitution of historic or spiritual material to a simple matter of economics. While no litigant should be encouraged to take prodigal action in pursuit of a claim for restitu-tion, certain objects may be so heavily charged with legitimate subjective or personal concerns, peculiar to the individual and divorced from their economic value, that it could be reasonable to pursue them through court action, even though the cost of such action exceeds their economic worth. Obvious candidates for such special consideration are national historical treasures (the “keys” to a nation’s ancient history)32 and Holocaust-related objects. A similar argument might be made about claims by indigenous peoples to recover ancestral remains or other relics having spiritual force. In many cases court ac-tion may be the only way to compel a museum or private possessor to pay serious atten-tion to a claim. Indeed, one English naatten-tional museum agreed to mediaatten-tion only after being sued33. It would be unfortunate if the low economic value of the material claimed were to be invoked as a ground for denying costs to the successful claimant.
V. Arbitration and Mediation compared
A. General
If (for whatever reason) the parties choose to discard litigation from the range of ac-ceptable options, the principal remaining options are arbitration and mediation. These have both similarities and differences. An understanding of these points of contrast is crucial to an informed choice between them.
B. Similarities
Speaking in general terms, both of these forms of resolution are consensual: they can operate only if the parties agree that they should occur. In each case, moreover, an agreement as to the resolution process can be made either before or after the dispute
32 Webb v Ireland and the Attorney General (1988) IR 353; Government of the Islamic Republic of Iran v Barakat Galleries Ltd [2007] EWCA Civ 1374.
33 Tasmanian Aboriginal Centre v Natural History Museum [2007].
IV. In defence of litigation
A. The value of litigation
There is of course another side to the coin. Blunder and squander are by no means inevi-table in litigation. Not all first instance judges are inattentive and not all lawyers are out of date. Litigation often proceeds in a seemly and efficient manner, managed by advisers who are well informed about the issues and keen to minimise costs, at least so far as concerns any award against their clients. Moreover, going to court can offer many ad-vantages to a claimant, not least because the modern administration of justice is much more closely geared than in earlier times to streamlining the progress of litigation and to ensuring that the management of claims is responsive to changed conditions. Wastage and delay have been much reduced.
There are, in any event, some situations where nothing short of the issue of proceedings will draw forth a constructive response from a defendant. Many of the cases that ended in mediation began with the issue of court proceedings because there was no other way of bringing the defendant to the table. The claim by the Tasmanian Aboriginal Centre against the Natural History Museum was a vivid example of this. The element of surprise that legal proceedings have been set in motion, and the daunting prospect of a long-term gamble at high stakes, may be highly material factors in inclining both parties towards alternative dispute resolution.
Material in this regard are the words of Richard Arnold QC, sitting as a Deputy Judge of the High Court, in Vitoft Ltd v Altof31:
“This dispute cries out for mediation if a settlement cannot be achieved through direct negotiations. Now that some of the more pressing issues have been determined I hope that the parties will be able to reach an accommodation. In case they are not I am mind-ed to order a stay with a view to mmind-ediation.”
is running by completing the purchase. Moreover, the purchaser on acquiring possession might him-self be advised to bring matters to a head by himhim-self applying for registration as owner of the land in question. If a dispute emerges, every effort should be made to resolve it without litigation. […] I find myself in agreement with the judge’s observation that it is simply not clear why the parties have been unable to resolve this matter. He goes on to speculate about whether the driving force is the legal costs. If that is so, and it has in the past been found to be the reason for an appeal in a boundary dis-pute, it highlights the need for professional advisers to think about some kind of strategy such as I have suggested above.” See further, on family provision disputes, Lilleyman v Lilleyman [2012]
EWHC 1056 (Ch).
31 [2006] EWHC 1678 (Ch), para. 221.
B. The limits of proportionality
Self-indulgent voyages through the legal system are of course to be discouraged. The courts are a limited resource and should not be exploited as a soap box for personal atti-tudinising or an instrument of vengeance. One must beware however of reducing claims for the restitution of historic or spiritual material to a simple matter of economics. While no litigant should be encouraged to take prodigal action in pursuit of a claim for restitu-tion, certain objects may be so heavily charged with legitimate subjective or personal concerns, peculiar to the individual and divorced from their economic value, that it could be reasonable to pursue them through court action, even though the cost of such action exceeds their economic worth. Obvious candidates for such special consideration are national historical treasures (the “keys” to a nation’s ancient history)32 and Holocaust-related objects. A similar argument might be made about claims by indigenous peoples to recover ancestral remains or other relics having spiritual force. In many cases court ac-tion may be the only way to compel a museum or private possessor to pay serious atten-tion to a claim. Indeed, one English naatten-tional museum agreed to mediaatten-tion only after being sued33. It would be unfortunate if the low economic value of the material claimed were to be invoked as a ground for denying costs to the successful claimant.
V. Arbitration and Mediation compared
A. General
If (for whatever reason) the parties choose to discard litigation from the range of ac-ceptable options, the principal remaining options are arbitration and mediation. These have both similarities and differences. An understanding of these points of contrast is crucial to an informed choice between them.
B. Similarities
Speaking in general terms, both of these forms of resolution are consensual: they can operate only if the parties agree that they should occur. In each case, moreover, an agreement as to the resolution process can be made either before or after the dispute
32 Webb v Ireland and the Attorney General (1988) IR 353; Government of the Islamic Republic of Iran v Barakat Galleries Ltd [2007] EWCA Civ 1374.
33 Tasmanian Aboriginal Centre v Natural History Museum [2007].
arose. In both cases it seems that an agreement to resolve disputes by one of these pro-cesses, if properly framed, will be enforceable as a contract and will not (for example) be void for uncertainty34. In both cases the parties must pay the honorarium of the arbitrator or mediator (compare the judge in a litigated dispute). Both processes are confidential so far as the parties agree.
C. Differences
The arbitrator is largely restricted to adjudicating the parties’ rights according to law.
Arbitration is a formal process under which the arbitrator must conduct the proceedings in a manner akin to that of a judge. Mediation is much less formal: for example, the mediator can speak to the parties separately if that is agreed. The mediator is not gov-erned by legal principle, because he or she is not entrusted with the task of deciding anything. The purpose of mediation is to encourage the parties to explore common ground in order to enable them to reach their own agreement and compose their own differences, not to produce a judgment upon them.
One might therefore say, as a very loose generalisation, that while arbitration can be a very effective mechanism to remedy past wrongs, mediation is a mechanism better suited to the building of future relationships. Arbitration is perfected by an adjudicator who delivers a determination of the dispute (the award) which becomes binding irrespective of the parties’ specific acceptance of it. Once they agree to arbitration they are bound by the result, whether they like it or not. In mediation, no party need accept or follow any result unless he/she agrees to it, because the outcome is agreed by the parties, and not imposed by an outsider.
Mediation can also generate remedies that are not possible in law-based resolution meth-ods. A loosely-drawn example might be drawn from the commemorative plaque that was recommended by the Spoliation Advisory Panel, and agreed by the parties, in the Tate-Griffier claim35.
34 In Hooper Bailie Associated v Natcom Group Pty Ltd (1992) 28 NSWLR 194, a mediation clause was specifically upheld because the clause included specific attributes that made it enforceable.
SPENCER J.M., Case notes: Mediation practice notes – around the grounds!, Australasian Dispute Resolution Journal, Vol. 15, 2004, p. 156 refers to four principles that can provide the requisite “cer-tainty” in a mediation clause: (i) use of language with precise meaning for procedure and obligations;
(ii) derivation from an external standard document recognized in the industry; (iii) capability of at-tributing an industry-recognised standard of reasonableness to a term; (iv) a third party mechanism to clarify and cohere the facts, principles and assumptions at issue.
35 Report of the Spoliation Advisory Panel on a Painting in the Tate Gallery, 2001.
On the other hand, there is an effective international process for enforcing arbitration awards in cross-border disputes in the shape of the New York Convention 1958. Outside the European Union36 there exists no generalised international process for the enforce-ment of settleenforce-ment agreeenforce-ments reached through mediation.
36 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, art. 19 to 22, implemented in the United King-dom by CPR 78.24. Very broadly and generally, the implementing CPR states that where the parties to a settlement agreement arising from the mediation of a cross-border dispute explicitly consent to the making by one or more of their number of an application to the court that the court shall make an enforcement order, and evidence of that consent is attached to the application, the court will make an order making the mediation settlement enforceable. Explicit consent is deemed to exist (CPR 78.24[7]) where a party to the mediation settlement (a) has agreed in the mediation settlement agreement that a mediation settlement enforcement order should be made in respect of that mediation settlement; (b) is a party to the application; (c) has written to the court consenting to the application for the mediation settlement enforcement order. The rules laid down on enforcement (and generally) by the Mediation Directive govern only to the mediation of cross-border disputes as defined in the Mediation Directive. By Art 2(1) of the Directive “For the purposes of this Directive a cross-border dispute shall be one in which at least one of the parties is domiciled or habitually resident in a Mem-ber State other than that of any other party on [the critical date].” By art. 2(2) of the Directive the critical date is the date on which (a) the parties agree to use mediation after the dispute has arisen; (b) mediation is ordered by a court; (c) an obligation to use mediation arises under national law; or (d) for the purposes of article 5 an invitation is made to the parties. Note however that by art 2(3) of the Mediation Directive: “Notwithstanding paragraph 1, for the purposes of articles 7 and 8 a cross-border dispute shall also be one in which judicial proceedings or arbitration following mediation be-tween the parties are initiated in a Member State other than that in which the parties were domiciled or habitually resident on the date referred to in paragraph 1(a), (b) or (c)”. The Directive, and its im-plementing regulations within the United Kingdom (The Cross-Border Mediation (EU Directive) Regulations 2011, No 1133) deal also with the suspension of limitation periods for the duration of a mediation and beyond and with the confidentiality of mediation proceedings. On the former see espe-cially the Mediation Directive articles 15 and 24, and the Regulations para. 26 which adds a new sec-tion 33A to the Limitasec-tion Act 1980. Very broadly and generally, for the purpose of calculating the time available for initiating judicial proceedings or arbitration, any relevant statutory time limit that would otherwise have expired either before the mediation ends or less than eight weeks after it ends, now expires instead at the end of eight weeks after the mediation ends (sections 33A(2) and 33A(3);
and see section 33A(4)). On the latter see the Mediation Directive articles 16 and 23, the Regulations para. 9 and 10, and CPR 78.26. Very broadly and generally, a party who wishes to obtain mediation evidence from a mediator or mediation administrator must provide the court with evidence that (a) all parties to the mediation agree to the obtaining of the mediation evidence, (b) obtaining the mediation evidence is necessary for overriding reasons of public policy, in accordance with article 7(1)(a) of the Mediation Directive, or (c) the disclosure or inspection of the mediation settlement is necessary to
arose. In both cases it seems that an agreement to resolve disputes by one of these pro-cesses, if properly framed, will be enforceable as a contract and will not (for example) be void for uncertainty34. In both cases the parties must pay the honorarium of the arbitrator or mediator (compare the judge in a litigated dispute). Both processes are confidential so far as the parties agree.
C. Differences
The arbitrator is largely restricted to adjudicating the parties’ rights according to law.
Arbitration is a formal process under which the arbitrator must conduct the proceedings in a manner akin to that of a judge. Mediation is much less formal: for example, the mediator can speak to the parties separately if that is agreed. The mediator is not gov-erned by legal principle, because he or she is not entrusted with the task of deciding anything. The purpose of mediation is to encourage the parties to explore common ground in order to enable them to reach their own agreement and compose their own differences, not to produce a judgment upon them.
One might therefore say, as a very loose generalisation, that while arbitration can be a very effective mechanism to remedy past wrongs, mediation is a mechanism better suited to the building of future relationships. Arbitration is perfected by an adjudicator who delivers a determination of the dispute (the award) which becomes binding irrespective of the parties’ specific acceptance of it. Once they agree to arbitration they are bound by the result, whether they like it or not. In mediation, no party need accept or follow any result unless he/she agrees to it, because the outcome is agreed by the parties, and not imposed by an outsider.
Mediation can also generate remedies that are not possible in law-based resolution meth-ods. A loosely-drawn example might be drawn from the commemorative plaque that was recommended by the Spoliation Advisory Panel, and agreed by the parties, in the Tate-Griffier claim35.
34 In Hooper Bailie Associated v Natcom Group Pty Ltd (1992) 28 NSWLR 194, a mediation clause was specifically upheld because the clause included specific attributes that made it enforceable.
SPENCER J.M., Case notes: Mediation practice notes – around the grounds!, Australasian Dispute Resolution Journal, Vol. 15, 2004, p. 156 refers to four principles that can provide the requisite “cer-tainty” in a mediation clause: (i) use of language with precise meaning for procedure and obligations;
(ii) derivation from an external standard document recognized in the industry; (iii) capability of at-tributing an industry-recognised standard of reasonableness to a term; (iv) a third party mechanism to clarify and cohere the facts, principles and assumptions at issue.
35 Report of the Spoliation Advisory Panel on a Painting in the Tate Gallery, 2001.
On the other hand, there is an effective international process for enforcing arbitration awards in cross-border disputes in the shape of the New York Convention 1958. Outside the European Union36 there exists no generalised international process for the enforce-ment of settleenforce-ment agreeenforce-ments reached through mediation.
36 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, art. 19 to 22, implemented in the United King-dom by CPR 78.24. Very broadly and generally, the implementing CPR states that where the parties to a settlement agreement arising from the mediation of a cross-border dispute explicitly consent to the making by one or more of their number of an application to the court that the court shall make an enforcement order, and evidence of that consent is attached to the application, the court will make an order making the mediation settlement enforceable. Explicit consent is deemed to exist (CPR 78.24[7]) where a party to the mediation settlement (a) has agreed in the mediation settlement agreement that a mediation settlement enforcement order should be made in respect of that mediation settlement; (b) is a party to the application; (c) has written to the court consenting to the application for the mediation settlement enforcement order. The rules laid down on enforcement (and generally) by the Mediation Directive govern only to the mediation of cross-border disputes as defined in the Mediation Directive. By Art 2(1) of the Directive “For the purposes of this Directive a cross-border dispute shall be one in which at least one of the parties is domiciled or habitually resident in a Mem-ber State other than that of any other party on [the critical date].” By art. 2(2) of the Directive the critical date is the date on which (a) the parties agree to use mediation after the dispute has arisen; (b) mediation is ordered by a court; (c) an obligation to use mediation arises under national law; or (d) for the purposes of article 5 an invitation is made to the parties. Note however that by art 2(3) of the Mediation Directive: “Notwithstanding paragraph 1, for the purposes of articles 7 and 8 a cross-border dispute shall also be one in which judicial proceedings or arbitration following mediation be-tween the parties are initiated in a Member State other than that in which the parties were domiciled or habitually resident on the date referred to in paragraph 1(a), (b) or (c)”. The Directive, and its im-plementing regulations within the United Kingdom (The Cross-Border Mediation (EU Directive) Regulations 2011, No 1133) deal also with the suspension of limitation periods for the duration of a mediation and beyond and with the confidentiality of mediation proceedings. On the former see
36 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, art. 19 to 22, implemented in the United King-dom by CPR 78.24. Very broadly and generally, the implementing CPR states that where the parties to a settlement agreement arising from the mediation of a cross-border dispute explicitly consent to the making by one or more of their number of an application to the court that the court shall make an enforcement order, and evidence of that consent is attached to the application, the court will make an order making the mediation settlement enforceable. Explicit consent is deemed to exist (CPR 78.24[7]) where a party to the mediation settlement (a) has agreed in the mediation settlement agreement that a mediation settlement enforcement order should be made in respect of that mediation settlement; (b) is a party to the application; (c) has written to the court consenting to the application for the mediation settlement enforcement order. The rules laid down on enforcement (and generally) by the Mediation Directive govern only to the mediation of cross-border disputes as defined in the Mediation Directive. By Art 2(1) of the Directive “For the purposes of this Directive a cross-border dispute shall be one in which at least one of the parties is domiciled or habitually resident in a Mem-ber State other than that of any other party on [the critical date].” By art. 2(2) of the Directive the critical date is the date on which (a) the parties agree to use mediation after the dispute has arisen; (b) mediation is ordered by a court; (c) an obligation to use mediation arises under national law; or (d) for the purposes of article 5 an invitation is made to the parties. Note however that by art 2(3) of the Mediation Directive: “Notwithstanding paragraph 1, for the purposes of articles 7 and 8 a cross-border dispute shall also be one in which judicial proceedings or arbitration following mediation be-tween the parties are initiated in a Member State other than that in which the parties were domiciled or habitually resident on the date referred to in paragraph 1(a), (b) or (c)”. The Directive, and its im-plementing regulations within the United Kingdom (The Cross-Border Mediation (EU Directive) Regulations 2011, No 1133) deal also with the suspension of limitation periods for the duration of a mediation and beyond and with the confidentiality of mediation proceedings. On the former see