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When Mediation Did = Dispute Resolution
March 30, 2022
In 1972 David Watkinson, while a pupil of Lord Anthony Gifford in Cloisters, met Stephen Sedley with whom Lord Anthony shared a room. Here, David considers the origin of dispute resolution and traces it back further than you may think.
Introduction
In April 2021 I commented on a speech given by Sir Geoffrey Vos (then recently appointed Master of the Rolls (MoR)) on 26/3/21 at Hull University’s re-launch of its Mediation Centre. In it he said he wanted to see “ADR integrated into every stage of what we call the dispute resolution process” (para 8). Indeed, he would remove the word “alternative” altogether (paras 37-8). So far from being an optional addition, the aim was to be (and remains, I believe) for ADR, and mediation in particular, to become part of the normal dispute resolution procedure.
Ancient Times
Recently I have come across material that suggests Sir Geoffrey may well be treading in the footsteps of history. It appears there was a time when ADR in the form of arbitration or mediation was the norm for settling disputes. In his collection of essays, “Law and the Whirligig of Time” [Bloomsbury, 2018], Sir Stephen Sedley, now a retired Lord Justice of Appeal, drew on the book “Early English Arbitration” by Professor Derek Roebuck [The Arbitration Press, 2008] to make a number of points. In a chapter headed “Arbitration”, Sir Stephen observes, “A court before which the wronged and indignant can haul their antagonists requires an organised state with ascertainable laws and an adequate apparatus of adjudication and enforcement…It is with Henry II and the first foundations of a modern legal system in the mid-12th century [that] a regular modern court begins to sit in London and the king’s justices ride out on circuit carrying the common law with them”. So what went on before? Particularly after the withdrawal of Roman authority in 410/11 AD and the submerging of Romano – Celtic civilisation beneath the Saxon incursions (in England anyway).
Professor Roebuck explains
Professor Roebuck’s work has been described on an Amazon review thus:-
“This book provides the first history of how disputes of all kinds were managed in England before the Common Law. It starts in prehistoric times…… providing evidence of regular assemblies dealing with disputes. From Roman times onwards, documents allow a detailed, though partial, picture to be drawn. Not only does the literature describe how mediation and arbitration worked in practice [but] the sources grow more plentiful in Anglo-Saxon times. We can read a Wiltshire arbitrator’s full report in his own words of an arbitration in Alfred’s time and learn new tricks from an award made in Worcestershire a thousand years ago.……This interdisciplinary study …..shows how natural and widespread mediation and arbitration have been in England since before history began. There is plenty of evidence of routine mediations and arbitrations in all manner of disputes: landownership, succession, ecclesiastical squabbles.……There was no lack of techniques fashioned to fit, including expert determination and a sophisticated form of dispute management successfully avoiding a difference becoming a dispute………. An appendix deals with the many unsettled questions of the languages of the period, British (including Welsh), Latin, Anglo-Saxon and Anglo-Norman (French).”
We cannot, of course, suppose the mediation / arbitration procedures of those times looked like those of today. There was no corpus of trained mediators nor, I would imagine, a generally accepted procedure. And, certainly by the time of Alfred the Great, known as “the Law Giver”, a court system was starting up. But, as Sir Stephen comments:-
“Simple societies and small communities…need other ways of preventing resort to self-help and violence each time a dispute arises. Communal pressure on the parties to find a compromise is one way, akin to modern methods of mediation. Another is to encourage or permit the parties to find their own judge or judges and agree to abide by their decisions: that is to go to arbitration.”
Some idea of how this worked comes from Hutchinson’s 1920 “Early History of the British Nations”:-
“But it is not to be doubted that the English, from the first, had local “courts” held in the open air, as was the primitive usage, at some conspicuous landmark, some stone or tree or burial mound, and bringing together for purposes of justice the men of the villages…In such courts the customs of the tribe were declared by the assembled freemen and applied to the special cases before them: no outside judge imposed penalties upon them and no paid force of police carried out their decrees-justice was a kind of arbitration by public meeting.” (page 159).
(Sedley/Roebuck suggest the Avebury stone circle as a site for such gatherings). And quite possibly the parties were invited to settle their differences after the relevant custom had been declared. As Sir Stephen adds “The typical arbitral proceeding, not only here but throughout early society, seems to have been a communal assembly at which priests or elders would attempt to mediate a settlement or, failing that, make an adjudication”.
Conclusion
Of course, the evidence for all this is not the most compelling. By the very nature of these proceedings, the records are few and that evidence has to be drawn from suggestion and inference. Nevertheless, given the lack of a comprehensive court system, or such a system at all, there must have been a means of settling disputes so it is likely there were procedures of the kind described or similar. And, as some philosophers have remarked, history tends to repeat itself though not always in exactly the same way.
