Can Mediation Work for Defamation?
Can Mediation Work for Defamation?
Summary of the Discussion at the Meeting on 1 November 2012
The meeting heard three very interesting contributions from the advertised speakers, Karyn Harty (McCann FitzGerald), Andrew O’Rorke (Hayes Solicitors) and Eamonn Kennedy (RTE). To these were added observations from Michael Kealey, solicitor with Associated Newspapers. The chairman Harry Whelehan S.C. then invited contributions from others present including mediators.
The main focus of the discussion concerned whether mediation can be made to work in a defamation case, why it isn’t, in general, tried, and whether if it is to be attempted, that ought to happen at the earlier or later stages.
It was pointed out that we are in an era where publishers are working on tight margins, are seeing revenues eroded by the switch of customers, particularly younger ones, and also advertisers, to online. This, it was suggested, made for a greater willingness to try any process that offered reduced costs for dealing with a claim of defamation. Figures were cited for the cost of running a High Court action at the present time. It was also noted that as regards print journalism, complainants will now often go first to the Press Council and the role of the Press Ombudsman was emphasised as well. (The latter, incidentally, has an assistant who frequently gets in contact with both sides in a dispute so there is an element of mediation at work in that instance.)
The discussion focused around the issue of what it takes to get a mediation going in such a case. It was reported that BOTH (!) plaintiff and defence side might be expected to say: ‘the other side won’t agree to it’. It was also asserted (although this was contested) that counsel ‘invariably advise against’ and also that some ‘big names’ take a position that they won’t negotiate’, at least not until the steps of the court are reached.
A Sign of Weakness?
Linked with this, was the familiar concern, that to propose mediation would be interpreted as a sign of weakness. As regards the latter, it was pointed out that there is a significant potential role for judges in encouraging parties to mediate, in the way Judge Kelly has done in the Commercial Court. However the absence of case management procedures in this area of court practice was noted as a limitation in this regard. It was also recognised that the proposed Mediation Bill has provisions which would insist on client and lawyer certification that mediation has been considered before an action is launched.
Refusal of Mediation
The view was put forward that if a defendant were to state in court that a claimant was offered mediation and didn’t take the offer up, this would likely weigh to the disadvantage of that claimant with a jury. It was suggested that the rules against referring to ‘without prejudice’ attempts at negotiation would not be a limitation with regard to such a statement.
The chairman invited consideration of the concern, however that a party who had declined an offer of mediation, might be challenged and disadvantaged in proceedings by being shown to have been “unreasonable”. It was to be recognised that the prospects for successful mediation would be influenced by whether parties entered into the process in good faith freely and willingly and with the intention of being open and honest in the process.
If the offer of mediation was to be made as a tactical offer and “each way bet” by the person making the offer in order to ensure either that the other party will submit to mediation or be open to criticism in proceedings for not agreeing to mediate, such a situation could undermine the mediation potential and reduce the idea to a mere tactical step “IN” proceedings rather than a tool to avoid or terminate such proceedings.
This concern, if well founded, would however be alleviated if the parties were required in all cases to explore the idea of mediation by court rules or legislation such as the forthcoming mediation statute, or case management by judges, so that the problem of one of the parties (in subsequent proceedings) being at a disadvantage for either “having shown weakness” in making the offer or “having shown arrogance” in refusing mediation, would be avoided.
It should be noted as well that if Irish judges are to follow English decisions in relation to situations where proposals to enter mediation have been rejected, then the issue of whether or not such a proposal is protected from disclosure as being ‘without prejudice’ may not arise. See note on the ONE~resolve website on the English decisions concerning costs sanctions on a successful party prepared by Rebecca Graydon BL, who attended the meeting.
Too Early, too Late?
There was considerable discussion around the issue of whether mediation might be more efficacious if proposed at an early stage in a case, as opposed to later when the case has developed. Those favouring mediation pointed out that there was an obvious advantage from the point of view of cost in endeavouring to compose differences early by mediation. It was also pointed out that if a claimant is seeking vindication in the wake of a libel, there must be a strong interest in dealing with the matter as quickly as possible, so as to ‘top the rot’.
It was recognised that the present system whereby barristers’ fees are loaded towards the time of trial (after briefs have issues) as opposed to front loaded is not helpful but the view was expressed that this aspect of the present system is unlikely to survive and that the lawyer’s obligation is always to choose the course that appears in the best interests in the client. In such an assessment the risks of major legal costs of going to trial will always be factored in.
The Money Aspect
Several speakers referred to the fact that while claimants may stress the experience of hurt and suffering undergone as a result of a libel, the issue of monetary settlement is almost always equally to the fore. Mediator’s present insisted that the mere fact that a financial negotiation was a significant element of the process was no limitation on the usefulness or prospects for a mediation. Mediation could deal with whatever were the issues and offered more scope for imaginative solutions. It was said that some of the key advantages of mediation were the facility a mediator has to speak with both sides in confidence in helping them to craft solutions and the opportunity to sit face to face to express hurt and to hear an apology personally delivered. It was noted also that the provisions of the 2009 Act provide additional material around which negotiation can usefully take place in a mediation (Declaratory Order,Offer of Amends, Correction Order).
Libel/Slander outside of the publishing/broadcasting industries
The meeting was reminded that while the discussion had concentrated n significant libels in the context of the publishing and broadcasting industries, in fact there has always been a category of defamation that occurs in more or less private settings and mediation on an informal basis has often been carried out by neighbours, parish priests or the like.
Addendum of suggested conclusions arising from the above to the above contributed by the Chairman, Harry Whelehan:
(1) Mediation could resolve a large number of defamation cases
(2) The cost savings via mediation would be huge, while the emotional/stress elements would be greatly reduced on all sides, and a speedy resolution achieved in very many cases
(3) The problems that inhibit the appointment of mediators are
a. The absence of a formula to initiate mediation
b. Poor appreciation of the process offered by mediation
c. A fear of showing weakness, or tactical loss by engaging
d. Perhaps, a fear that disclosures/admissions made in the course of mediation might in some way be used (despite the obligations of confidentiality) to the advantage of the other party in proceedings if the mediation proved unsuccessful