When the Government enacted the Human Rights Act it proudly boasted that “human rights have come home”. But the welcome in words was blunted by its actions: it continued to withdraw the protection of citizens’ rights (human and otherwise) by emasculating civil legal aid when the costs of enforcing or defending such rights were beyond all but the very rich and the legally aided.

As a fig leaf it legalised agreements providing for payment of lawyers on a conditional fee, that is, it brought in “no win, no fee” deals – but lawyers will not generally act on that basis unless the prospects of success are abnormally high – above 80 per cent. All this can lead to an (understandable) loss of confidence in the law and the legal system.

The Government has been willing to spend millions on luxuries such as wallpaper, the Dome and the Olympic Games – but unwilling to fund access to justice. The dilemma, then, is how to provide the protection of the law to citizens who cannot pay.

Do not believe that justice can be readily achieved by litigants acting in person. Quite the reverse. They cannot generally distinguish what is and what is not arguable, what course serves their interest and what risks they run over costs. Their liability for an opponent’s costs so often renders the perceived injustice that prompted proceedings a mere pin prick compared with the final (self-inflicted) pain.

As a result there is a crucial need for mediation as a palliative – as the only available recourse of those who cannot afford the costs and risks of litigation, and the chance of justice that it affords.

Two obstacles have been placed in the path of would-be parties to meditation by the Court of Appeal decision in Halsey v Milton Keynes. The court held firstly that a litigant cannot be ordered to proceed to mediation against his will because this would contravene his right of access to the courts under Article 6 of the European Convention on Human Rights; and secondly, that a litigant seeking the imposition of a costs or other sanction on his opponent on the ground that the latter refused to give mediation a chance has the burden of proving that the refusal was unreasonable.

Both of these propositions are unfortunate and mistaken. In respect of Article 6, the reasons are twofold. First, the Court of Appeal appears to have been unfamiliar with the mediation process and to have confused an order for mediation with an order for arbitration or some other order that places a permanent stay on proceedings.

An order for mediation does not interfere with the right to a trial: at most, it merely imposes a short delay to allow an opportunity for settlement. It may not even do that, for it may require or allow the parties to proceed with preparation for trial. Secondly, the appeal court appears to have been unaware that ordering parties to proceed to mediation regardless of their wishes happens elsewhere in the Commonwealth, the United States and the world at large, and indeed in Britain in matrimonial property disputes in the Family Division. The Court of Appeal refers to the fact that a party compelled to take part in mediation may be less likely to agree a settlement than one who willingly proceeds to mediation. But that is not the point. Such is the impact of mediation that parties who enter it unwillingly often become infected with the conciliatory spirit and settle. Even if only a small percentage of those who have been forced to mediate settle, it is better than never giving the process a chance.

A decision as to the onus of proof of reasonableness or unreasonableness must be guided by three factors: first, that those otherwise deprived of access to justice should be given a chance of achieving it in this way; secondly, the commonsense proposition that the party who refuses to take part in mediation should have to give, explain and justify his decision; thirdly, the explicit duty of the court to encourage the use of mediation and discourage unjustified refusals to do so. All these factors point to imposing the burden of justifying the refusal on the party who refuses to proceed to mediation.

A thermometer of the health of mediation reveals its worldwide spread and appeal. It permeates the US insolvency system. Training courses are given throughout Eastern Europe. A European directive on mediation is on the cards – though I should add the caveat that it has been “imminent” for a long time. For some years I have been the UK board member of GEMME, an organisation of European judges committed to mediation. The group is recognised and partly financed by the European Union and its purpose and activities are directed to promoting the use and understanding of and training in mediation within member states.

I see often in court the price paid by parties who have not – for a variety of reasons – proceeded to mediation and therefore picked up the heavy tab of the litigation. I have seen litigants and their families broken by the process and the cost of litigation. Plainly, it is the duty (in particular) of the law and lawyers to avoid this scenario whenever possible.

No thinking person can be but embarrassed by the lack of provision by the State of the means for access to the courts. No thinking person can but be disturbed by the imposition of the twin hurdles to mediation that the Halsey decision creates. The removal of the first hurdle is a matter for the legislature; the second for the courts. This may be made easier by a greater familiarity with mediation and by a recognition that, in practice, the hurdles are regularly sidestepped or overlooked without causing any tremors to the scales of justice.

Mr Justice Lightman is a High Court judge.
This is an edited version of a speech he delivered recently at the law firm SJ Berwin.

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