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Leveson & mediation: Too much of a good thing?

by Matthew Rushton on 03 Dec 2012

leveson and mediation

While arbitrators are no doubt reworking their CVs to highlight experience in media law, last week’s keenly awaited publication of the Leveson Report brought disappointing news for those who hoped that mediation would be a central part of the solution to inadequate regulation of the UK press. Indeed, at various points in the Report, Lord Justice Leveson made clear his view that widespread (and successful) use of mediation by the Press Complaints Commission (PCC) has been masking breaches of the Editors’ Code of Practice, thereby creating a falsely positive representation of the conduct of the press, and undermining public accountability.

Nevertheless, it would be a misinterpretation to suggest that the report is anti-mediation. Rather, Leveson’s view is that while mediation has merit in many contexts, confidentiality and lack of clear findings are incompatible with the effective function of a regulator of the press. At page 1558 of the Report at paragraph 6.64, Leveson LJ states that, “…as a mediated complaint does not feature in any statistics as a breach of the Code, it seems clear that from the point of view of public accountability and compliance there is a misleading picture.”

It isn’t a deficiency with mediation per se, instead he suggested that the process’s merits are much less pronounced in a regulatory or standard-setting context. The paragraph immediately following reads: “The policy reasons militating in favour of compromise of private disputes (cost; avoidance of court time; the preference for settlement over a fight to the bitter end) do not apply with anything like the same force in relation to matters which possess….a regulatory or standards dimension.”

The necessity of accountability, and the confidential nature of mediated settlements are evidently problematic where the conduct of an industry requires scrutiny. Leveson concluded that settling disputes at a late stage by mediation, “worked to the advantage of the industry, who could point to near unblemished records in relation to breaches of the Editors’ Code of Practice; the evidence … to the Commission was, in fact, manifestly different.”

Adjudication on matters where a breach of the Editors’ Code of Practice is in issue, he reasons, should properly be a central function of a regulator. To some extent mediation has been the victim of its own success with widespread use and high settlement rates creating a distorted image of press conduct. Mutually satisfactory resolution of a dispute is not enough. “Just because it has proved possible to resolve a complaint to the satisfaction of the complainant without a formal adjudication there is no guarantee that a breach of the Code was not committed, “ Leveson wrote. “….only those few that go to a full adjudication ever get to the state at which a breach of the Code is recorded.” He concluded that, “this allows the fiction that only a handful of breaches of the code occur each year to go unchallenged.”

Earlier in the report, mediation is damned with faint praise. In recording what the Press Complaints Commission did well, Leveson concluded that “On most occasions, complainants were satisfied with the mediated and agreed solutions to problems, and this was a job that the PCC was good at.” He then wrote that, “In appropriate cases, and no doubt there are many, a mediated settlement is a sensible way of dealing with disputes between parties.”

Part of the problem

Leveson LJ devoted a number of paragraphs in volume four of the Report to a long-running academic argument as to whether the PCC was a mediator (and by implication toothless) or a regulator. He found that the PCC used language to describe its power and functions that gave the impression that it was more potent than it really was, and that the PCC, “projected the impression that it possessed powers, competence, status and capacity which it did not.”

Under a paragraph headed, “A fundamental failing: The PCC was not a regulator”, Leveson LJ dismissed the characterisations of the PCC as a regulator by stating that it lacked “independence from the press; and the power, the armoury of sanction or the resources to be a regulator properly so-called.” He concluded therefore that the, “PCC is better characterised as a complaints and mediation service.”

Part of the Solution

Given the above, Leveson’s conclusion that arbitration is a more suitable solution to the problem of cost, time and accountability is understandable. “What is needed is a quick, fair and inexpensive system for resolving…disputes,” he wrote. He therefore recommended, “an arbitral process…drawing on legal experts of high reputation and ability on a cost-only basis….” He rightly suggested that it should not be difficult to provide such expertise, “not only from those who have retired from the Bench but also from the most senior ranks of the legal profession.” He goes on to say that “the process would be fair, quick and inexpensive, inquisitorial and free for complainants to use.”

Conclusion

Complaint handling formed a small but significant part of the report, and Leveson had other, larger issues to tackle. Nevertheless, for anyone familiar with arbitration, the hope that an adjudicative process alone can restore accountability, and give complaint handling the necessary “teeth” seems a tall order. Without careful control, cost and time involved in arbitration can equal that of litigation. Safeguards on costs in particular will be vital in securing the buy-in from the press to any independent regulator.

With politicians divided as to the desirability of an independent regulator underpinned by statute, there is evidently a long way to go before Leveson LJ’s proposals are adopted or not. Perhaps, as debate continues, a scenario might emerge where appropriate dispute resolution processes could be adopted according to the nature of the complaint. And this could include a continuation of the successful use of mediation in defamation and privacy disputes.

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Topics: Mediation

Matthew Rushton

Written by Matthew Rushton