But I have changed my mind. I am a nice person, deep down, and it only took these litigation reforms of Lord Woolf to bring out my niceness. This pre-action protocol really does work. True, it is not all that cheap to carry through but it does cause potential litigants to get together and once you do that, there is a real chance that you will understand what the other bloke is fed up about.
The idea is to unravel the dispute without a third party. And according to a new report, Civil Justice Reform Evaluation, there is much to crow about. Overall, there is a significant drop in the number of court actions begun, the pre-action get-togethers are promoting settlements, the use of single-joint experts in those disputes that do fight is said to be working well and the use of mediation is a well-settled alternative practice. There is not so much joy in the actual cost of litigating. The report sidesteps the issue by saying: "It is too early to provide a definite view on costs." Seemingly there is conflicting anecdotal evidence on costs. Where there is evidence of an increase, the causes are difficult to isolate.
Let me make a confession: I am a convert to this mediation malarkey. I thought it was all tosh, a sham – but silly me, it really does work
The whole idea of the Woolf reforms was to avoid litigation altogether. Truthfully, nobody in building went as far as saying we could avoid disputes – too ambitious. But the idea was to put a stop to being adversarial and make a start in being more co-operative. In other words, manage the dispute between parties. That bit of the reforms has surely worked. Don't dig in. When in a hole, the idea is to stop digging. And if some people insist on having a piece of litigation, the Woolf reforms do present a real chance, once the "writs fly", for the parties to still reach their own solution. The report tells us that settlements at the door of the court are now fewer and fewer. The reason is that the management role of the judges includes focusing the minds of litigants on the wisdom of continuing to seek a solution of their own. About 30% of mediator appointments via The Centre for Effective Dispute Resolution are disputes referred by the courts. And let me make another confession. I am a convert to this mediation malarkey. I thought it was all tosh, a sham – but silly me, it really does work. Although I haven't changed my mind about carrying through a piece of litigation all the way to court using a single-joint expert.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.