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In Place of Strife

The Mediation Chambers

The tragedy of Charlie Gard

Should mediation feature in cases such as this? The Judge clearly thought so.

Like many in the UK and, indeed, across the world I had been following with concern the battle fought by Charlie Gard’s parents to help their extremely ill little boy.  To have to deal with any child’s illness is heart-breaking but this story was all the more tragic because of the apparent breakdown in relationship between his parents and the hospital caring for him.  It struck me, as I followed the story, that this was a dispute crying out for mediation.  My belief was shared by Mr Justice Francis who, in a paragraph in his judgment said the following:

"[20]  Fourthly, I want to mention, again, the subject of mediation. Almost all family proceedings are now subject to compulsory court led dispute resolution hearings. This applies in disputed money cases, private law children cases and in all cases involving the welfare of children who might be the subject of care proceedings. I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be. However, 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." 

It is not clear why this case was not mediated but, based on my experience, I could not agree with Mr Justice Francis more.  The opportunity for parties to hear one another, away from the circus and publicity of the court room, is highly beneficial.  Even if agreement is not reached, my experience is that huge benefits can be drawn from a “failed mediation”.  In the first instance, it allows the parties who are often distanced by the procedure and language of litigation to meet each other on a human level in an informal setting.  The realisation that the other side are human, that they have reasons for the positions they hold and, crucially, in this case that they both believed that they were doing the best for little Charlie might have allowed this case to have been played out in a far less combative way.  Where mediation trumps litigation again and again is that it allows a conversation to take place between the parties which gives proper recognition to the human condition - the emotion which lies at the heart of every dispute. The mediator has no magic wand but can at least provide a safe place for the most difficult conversations.

The full text of Mr Justice Francis’s judgment can be found here: https://www.judiciary.gov.uk/wp-content/uploads/2017/07/gosh-v-gard-24072017.pdf

Mark Jackson-Stops

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