THE ADVERSARIAL system is a powerful means of ensuring justice, but it is not without its faults and mediation is sometimes a better way of ensuring justice.
Mediation is particularly important in the context of the EU because it is at an early stage of development there; all states have a part to play in shaping its future and by doing so in helping the project of convergence of the legal systems.
A famous case in the US illustrated the great strength of the adversarial system, particularly when an individual faces the might of the state.
Oliver Brown was a parent, a welder in the shops of Santa Fe Railroad, and a pastor at his local church. He was African American. His daughter, Linda, attended Monroe Elementary school. There was a more convenient school - Sumner Elementary - but it was for whites only.
Oliver Brown is the first-named plaintiff in Brown v Board of Education of Topeka. On May 17th, 1954, the Supreme Court of the United States held, reversing previous Supreme Court decisions, that separate education facilities were inherently unequal and violated the US Constitution.
This case had a profound effect. It energised the American Civil Rights Movement and is part of that fast-flowing river of reform and reconciliation which included, for example, the Voting Rights Act of 1965.
This is a very important case. It is about the balancing of the executive and judicial power and the restructuring of the social architecture of the US. It is also about addressing injustice in the lives of ordinary people. Two legal giants faced each other like gladiators: Thurgood Marshall appeared for the plaintiffs and John W Davis for the defendant.
We can see in this encounter between Marshall and Davis that the adversarial system is a contest - a fight - in the pursuit of justice. The adversarial process dealt with that particular injustice of segregation as it dealt with many injustices in our society.
Walsh J was, of course, responsible for many such decisions in this jurisdiction. Perhaps one of the greatest was Byrne v Ireland where he held, with Ó Dálaigh CJ and Budd J, clearly and resolutely, that the sovereign authority within the Constitution is the People, not the State, and that the State was not above the law.
We, as a society, should talk more and teach more about cases such as that.
This system works and when it does it proves the strength of our democracy. However, it often works because lawyers have given their time for no guarantee of reward. The sides must be evenly matched. If they are not and if the power imbalance is enormous - for example if an individual and under-resourced plaintiff is battling against a large and amply resourced corporation in a position to engage a range of expensive experts - we must be concerned for justice.
We must now ask ourselves a more difficult question: are there situations where the adversarial system can even make situations worse? Consider the pleadings made in certain disputes. In disputes like right of way disputes, in family law and in commercial and other disputes where a future relationship might be important, we must at least consider that conflict resolution in the form of mediation might be a better way.
The adversarial system easily encourages appalling military language - "the court battle" - "the legal skirmishing" - "attack" on credit etc and all of this can not only not resolve the dispute, but create aggression and contribute to a worsening of relationships. Things better left unsaid are released into the conflict because everything must be pleaded in the effort to win. Extreme demands are made because a relief not claimed cannot be given.
Ordinary decencies like giving an explanation to another person, expressing regret or making an apology are all discouraged either as signs of weakness or as admissions of liability. All the time we lawyers are projecting our idea of what the problem is on to the problem itself.
Those involved may need mediation. The process is simply defined in The European Code of Conduct for Mediators: "For the purposes of this code mediation is defined as any process where two or more parties agree to the appointment of a third party - hereinafter 'the mediator' - to help the parties to solve a dispute by reaching an agreement without adjudication and regardless of how that process may be called or commonly referred to in each Member State."
The function of the mediator is to understand both sides. The mediator is able, under the protection of confidentiality, to hear both sides and to form a view as to the source of conflict. If what is actually driving the dispute can be identified, then it might be possible to resolve the conflict. Misunderstandings can be addressed.
Many people just want an apology or an explanation - much litigation is driven by people who "just want to know what happened" and are not allowed find out any other way.
People can be helped to look to the future - not remain stuck in the past. The solution is voluntary and can be imaginative, going beyond the bounds of any court remedy. Most of all the parties are empowered to deal with the matter themselves.
This is particularly important in Family Law. Here the parties who put together this situation of intimacy are helped to determine it with dignity and to prepare a future where respect survives.
The European Union is interested in mediation. In July 2004 the commission launched the Code of Conduct for Mediators. In October 2004 the commission adopted and submitted to the parliament and European Council a draft framework directive on mediation.
These are exciting developments. One of the great projects of the Union is to promote greater compatibility and less complexity between the different legal systems of the member states. This will facilitate greater access to justice and the proper functioning of the internal market. We are stuck with all the differences produced by the Common Law and Civil systems, but we are now presented with an opportunity to develop together, from the ground up, block by block, the rules and procedures for mediation as an effective method of dispute-resolution right across Europe.
The draft directive was originally intended to apply to all disputes, but was amended in parliament to apply only to cross-border matters. It has not yet gone to parliament for a second reading.
Broadly, the draft directive seeks to protect the confidentiality of the process, suspend limitation periods, promote quality in mediators, and provide for effective implementation of agreements so as to promote and support the mediation process.
The Code of Conduct seeks to voluntarily achieve quality in mediators, and establish ethics in advertising, independence and neutrality, impartiality, fairness of procedures, confidentiality and transparency in the charging of fees.
It serves as a very useful guide and could be adopted, with some slight amendment, by our Bar and perhaps by the Bars across the Union with the help of the Council of Bars and Law Societies of Europe.
In many ways the code might be more effective in promoting common standards than the directive.
Codes of conduct and directives however - they do not inspire - they are the prose of this great endeavour. The poetry is in learning these ideas of peacemaking and of conflict resolution - for that is what mediation is - bringing people together, not setting them apart. Is this not what the European project is all about?
Turlough O'DonnellSC is chairman of the Bar Council