Media and Mediation: Libel

This is the second article to take up one theme offered by the responses to the Green Paper on alternative dispute resolution in civil and commercial law. The theme is a sector-by-sector analysis of where ADR, and mediation in particular, could be used more widely.

My view is that the level of awareness among clients of this alternative is very low and effective awareness amongst practitioners is limited. While they may be aware of all CPR requirements concerning ADR, there may be room to improve the practitioners perception of it and their ability to more clearly see where it could fit into the advice they give to a client and their management of a particular type of case.

I find that the attitude of many lawyers, even those who have looked into mediation, is that "it is no different to negotiation" and so they " do not need it". My response is that I would agree that cases might settle anyway - but that mediation may achieve it sooner, more economically and on terms that all parties are happy with.

It is not my position that mediation is a panacea that will bring together parties in every situation. I do believe it is possible to develop a more structured approach to the stereotypical situations which we encounter in libel and consider indicators which, when appearing together, suggest that mediation should be advanced as a strong alternative.

So, if mediation will work if x, y, and z feature in a particular dispute, what are these variables in libel?

What I wish to do here is to look at one or two contenders and present them against a range of typical libel case scenarios.

1 Time factors. From a defendant point of view, it is sometimes necessary to look into a justification defence even where it is not obviously available at the time the complaint is received. In other cases, and error may be so blatant that no further research is necessary.

2 Nature of Defendant. The focus of decision-making will vary. With a newspaper it is often concentrated with an editor who can be approached to issue instructions and reach decisions very quickly. In other organisations, the structure may be more diffuse and responsibility will move between various executives. In these latter cases, there may be increased value in mediation, as it provides the focus that is otherwise very difficult for the advising lawyer to orchestrate.

A Typology

This is only offered as a simple structure - any case could begin in one category and move to another.

1 The Unreasonable Litigant.

In libel, this label may most often be attributed to the claimant -- and in extreme cases they may become vexatious. In mediation, it is more likely to be the defendant who will not go...