The chronology of what will happen to Charlie Gard’s life has provoked strong reactions from many quarters. This post does not deal with the substantive and important issues of Charlie’s life but more with the suggestion made by Mr Justice Francis on 11th April 2017 and reiterated on Monday 24th July 2017 as to how mediation may be helpful in spite of the difficult facts of such cases.
In April, Francis J ended his judgment describing in part what mediation could offer namely, a process where ‘the parties can have confidential conversations to see what common ground can be reached between them’. He went on to say, ‘I am not saying that it would necessarily have led to a resolution, but I think in many such cases it would and I would like to think that in future cases like this such attempts can be made’.
On Monday 24th July 2017 the Judge concluded his judgment saying,
‘It is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other’s positions. Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side even if they profoundly disagree with it, would in my judgment be of benefit and I hope that some lessons can therefore be taken from this tragic case which it has been my duty to oversee’.
The observations by Mr Justice Francis are timely given that the Court of Protection and the Office of the Public Guardian are actively exploring the remit of a Mediation Pilot. Many people never litigate and those that do may only do so once in their life. Similarly with mediation.
In both cases people can find themselves on unfamiliar ground, even with very good legal advice. All the more reason why judicial encouragement to parties to mediate needs to be regularly repeated. Alongside this, detailed explanations of what opportunities mediation can offer as well as transparency of the cost, which can be met with legal aid, would help people consider mediation.
The stress and anxiety of litigation may mean that when parties are already immersed in a case they are less receptive to the suggestion of mediation. However, mediation always offers a chance to stand back, take stock and channel energy towards greater understanding of the issues in dispute, if not a complete resolution of them. An essential ingredient in mediation are the facilities of listening and being listened to. This process of listening and being heard enables a greater understanding of each parties’ concerns and a recognition of their needs. What can follow is an exploration of how these needs could be realised with a resolution.