Articles

29 Jan 2008

My place at the mediation table: What I needed to ‘unlearn’

Published here by permission of the author, Sir Henry Brooke, this article first appeared in the US in the journal of the International Institute for Conflict Prevention and Resolution, Alternatives, VOL. 25 NO. 10 NOVEMBER 2007. To view the article in PDF as it appears in Alternatives please click here.

I opened my first law book at age 25. After 24 years as an advocate at the English bar, I became a High Court judge at 52. I retired voluntarily last fall at age 70 after 10 very happy years in the English Court of Appeal, ending up as its Vice-President.

Now I have embarked on a third career as an independent mediator.

Early on in this career— that is, earlier this year—I made the mistake of sitting next to Alternatives’ editor at CPR’s Spring Meeting in Paris. When my cover was blown he asked me to write a piece about my experiences so far, with a view toward transitional training, from the perspective of a former judge.

So here it is.

I knew a good deal about mediation before I started this new career. By chance, I delivered the first judgment in our Court of Appeal that forced litigators to take the possibility of mediation seriously if they wanted to be sure they would recover costs for their successful clients in our costs-shifting litigation regime. See Dunnett v Railtrack plc (Practice Note) [2002] EWCA Civ 303; [2002] 1 WLR 2434; [2002] 2 All ER 850, CA (available at www.bailii.org).

I attended plenty of talks about mediation and I watched videos about mediation and I even visited two of the Baltic states to speak about mediation.

In fact, I knew enough to be quite sure that if I was ever to become a successful mediator myself there was a lot I needed to learn. There was also a lot of accumulated baggage from 42 years as advocate and judge that I needed to unlearn.

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