In March 2013 a number of very senior and well respected Circuit Judges produced a book entitled A Handbook for Litigants in Person which was published on their behalf by Linklaters. In the foreword to the book Lord Dyson, Master of the Rolls, the second most senior judge in England and President of the Civil Division of the Court of Appeal, welcomed its publication and forecast that the number of litigants in person – that is individuals who are representing themselves in a civil case – was set to increase over the coming years. Recent experience indicates that his prediction was well founded.
In the foreword to the Handbook the authors point out that litigation is a serious and demanding business, and should not be entered into lightly. They go on to point out that litigation can be avoided altogether either by surrender or by compromise. The compromise to which they refer is either formal or informal Alternative Dispute Resolution, the most popular and effective type of which is mediation.
The first chapter of the Handbook explores with the reader options for pursuing an action which do not require that he or she appears as a litigant in person. Help may be available from insurance companies through appropriate policies, from the legal profession through the use of Conditional Fee Arrangements or so-called ‘no win, no fee’ contracts, or through charitable bodies or the Citizens Advice Bureaux. In Chapter 2 it goes on to talk in detail about mediation.
The Handbook describes litigation as a last resort and one to be approached only when all other means of resolving a dispute have been exhausted, something echoed by the Ministry of Justice. It goes on to say that the courts actively encourage the use of mediation through a carrot and stick approach. The carrot is that the court points out the substantial savings that can be realised through mediation when compared to the costs of litigation. The stick is a statement by the Court that a successful litigant who has refused to even consider mediation may not be able to recover his or her legal costs at the end of the trial. This is because the Civil Procedure Rules require litigants to at all times behave reasonably, and one measure of that reasonableness is the willingness to explore options to avoid a dispute coming to trial, something which the victorious party in PGF II SA v OMFS Co learned to his cost.
The Handbook goes on to describe the mediation process in outline, observing that it is a process whereby opposing parties come together to engage in negotiation with the aim of finding a workable agreement and thereby avoid having to go to court at all. Here at Hampshire Mediation it is our goal to help participants in a dispute find that agreement.
