Directive on Mediation - The Subsidiary Principle
2004/0251(COD)
Amendments
Arlene McCarthy MEP has published her drafts to the Consultation Paper on the Subsidiary Principle (taking issues out of the control of the UK and up to the Community level in the EU).
Unfortunately, her drafts are not worth the paper they are written on. They "intentionally" will mislead the European Parliament. She has gone down the route of promulgating the myth that mediation (ADR)is in someway akin to "Access to Justice". This is clearly not the case, the outcome of mediation is "Access from Justice" especially when contained "within" the judicial and legal system. A "misrepresentation" is an act of bad faith. Litigation is necessary to achieve Justice only. Litigation and Mediation (ADR) are opposites. The former, the "judge" decides and the parties experience equality before the law in a traditional sense. The latter, the "parties" decide and there is a spectrum which I call "contemporary equality" between 99:1 70:30 [50:50] 40:60 1:99. Whilst the parties are required to act in "good faith", the mediator is neutral and has no powers to make people behave on a 50:50 basis - therefore "inequality" is more likely to be the order of the day in mediation.
As Rapporteur she interviewed a total of 7 people, of whom 2 were published responses - England & Wales and Austria, the other 5 are alleged to be "experts". Why she chose to use 5 experts who were not published responses is suspicious - perhaps she needed to rubber stamp a settled outcome. My published response (minus the publication of the provided evidence) was contrary to the proposed Directive and was based on a "competition model" as opposed to the "coercive regime model" of the English & Welsh legal system. Why, oh why, did she not interview me - given my very academic stance in Jurisprudence is contrary to and exposes the fundamental flaw in the Directive which is back to back the same flaw in the Woolf Report covering the legal system of England & Wales which is sourcing from America (not Japan where the concept originally comes from). She claims to have read my published response, but it appears not to have been processed further. This is bias. It is probably also undemocratic, ie if you don't have a fair and transparent process, then you are unlikely to achieve a fair and democratic outcome - the reports go before the European Parliament at the end of February unless my behind the scene activites can do something to alter that process - should I email all MEP's in Europe to show them they are being scammed by this concept, let them know there is an alternative (the competition model), or have I done my best and if Europe wants to make fools of themselves, so be it. Let me know - there is a comments box and email address if you want to contact me.
What Ms McCarthy MEP is promoting is a piece of utter nonsense based on people who are nowhere near expert to my mind. I would go so far as to say she could be guilty of misconduct in public office if she delivers up this draft to the European Union for debate.
I am currently doing my best to make this report - ACCURATE.
Which raises the question, why do mediators (ADR'ists) want people to believe they are getting "Access to Justice" and "Equality" when they are clearly getting the opposite as an outcome "Access from Justice" and "Inequality".
There is an agenda here - undermining the rule of law - the ulterior motive is the issue. Reason would suggest there is an ulterior motive at play - societal standards lower when the rule of law is about non-law. Why would a Judge, barrister or lawyer not want the rule of law to be applied - they presumably studied and practised law for a reason?
Moreover, mediation (ADR) in the McCarthy methodology "overreaches" into judicial case law and removes the case from the public arena of law to its own private forum, thereby "hiding" the case and the parties. Why would a judge collude with the hiding of issues. Society is safe where the light of day shines into the corners of evil, why would both parties want to hide any wrong doing. This question is relevant to Japanese culture where ADR is used to "save lack of face". This is contrary to the English & Welsh model which is promoted to "save money", ie the premis that it is quicker and cheaper than litigation. The Scots even claim "it saves money on the legal aid fund"! Justice is a cost that cannot be measured - it stops people reverting to savage or even going to war! In war, the first thing to go is the judicial system.
Lastly, it is fallacious that Mediation (ADR) is cheaper, quicker and can happen anytime, anywhere. If it was the case, then why did the Woolf Reforms find it so difficult to gain access to research material and had to implement the Woolf reforms on minimal substance and statistics?
Arlene McCarthy's reports have taken over a year to draft, are nonsensical, unintelligent, possibly criminal, shoddy, inaccurate and disastrous.
So much for European Year 2007 being the year of "Equality and Non-Discrimination"
Amendments
Arlene McCarthy MEP has published her drafts to the Consultation Paper on the Subsidiary Principle (taking issues out of the control of the UK and up to the Community level in the EU).
Unfortunately, her drafts are not worth the paper they are written on. They "intentionally" will mislead the European Parliament. She has gone down the route of promulgating the myth that mediation (ADR)is in someway akin to "Access to Justice". This is clearly not the case, the outcome of mediation is "Access from Justice" especially when contained "within" the judicial and legal system. A "misrepresentation" is an act of bad faith. Litigation is necessary to achieve Justice only. Litigation and Mediation (ADR) are opposites. The former, the "judge" decides and the parties experience equality before the law in a traditional sense. The latter, the "parties" decide and there is a spectrum which I call "contemporary equality" between 99:1 70:30 [50:50] 40:60 1:99. Whilst the parties are required to act in "good faith", the mediator is neutral and has no powers to make people behave on a 50:50 basis - therefore "inequality" is more likely to be the order of the day in mediation.
As Rapporteur she interviewed a total of 7 people, of whom 2 were published responses - England & Wales and Austria, the other 5 are alleged to be "experts". Why she chose to use 5 experts who were not published responses is suspicious - perhaps she needed to rubber stamp a settled outcome. My published response (minus the publication of the provided evidence) was contrary to the proposed Directive and was based on a "competition model" as opposed to the "coercive regime model" of the English & Welsh legal system. Why, oh why, did she not interview me - given my very academic stance in Jurisprudence is contrary to and exposes the fundamental flaw in the Directive which is back to back the same flaw in the Woolf Report covering the legal system of England & Wales which is sourcing from America (not Japan where the concept originally comes from). She claims to have read my published response, but it appears not to have been processed further. This is bias. It is probably also undemocratic, ie if you don't have a fair and transparent process, then you are unlikely to achieve a fair and democratic outcome - the reports go before the European Parliament at the end of February unless my behind the scene activites can do something to alter that process - should I email all MEP's in Europe to show them they are being scammed by this concept, let them know there is an alternative (the competition model), or have I done my best and if Europe wants to make fools of themselves, so be it. Let me know - there is a comments box and email address if you want to contact me.
What Ms McCarthy MEP is promoting is a piece of utter nonsense based on people who are nowhere near expert to my mind. I would go so far as to say she could be guilty of misconduct in public office if she delivers up this draft to the European Union for debate.
I am currently doing my best to make this report - ACCURATE.
Which raises the question, why do mediators (ADR'ists) want people to believe they are getting "Access to Justice" and "Equality" when they are clearly getting the opposite as an outcome "Access from Justice" and "Inequality".
There is an agenda here - undermining the rule of law - the ulterior motive is the issue. Reason would suggest there is an ulterior motive at play - societal standards lower when the rule of law is about non-law. Why would a Judge, barrister or lawyer not want the rule of law to be applied - they presumably studied and practised law for a reason?
Moreover, mediation (ADR) in the McCarthy methodology "overreaches" into judicial case law and removes the case from the public arena of law to its own private forum, thereby "hiding" the case and the parties. Why would a judge collude with the hiding of issues. Society is safe where the light of day shines into the corners of evil, why would both parties want to hide any wrong doing. This question is relevant to Japanese culture where ADR is used to "save lack of face". This is contrary to the English & Welsh model which is promoted to "save money", ie the premis that it is quicker and cheaper than litigation. The Scots even claim "it saves money on the legal aid fund"! Justice is a cost that cannot be measured - it stops people reverting to savage or even going to war! In war, the first thing to go is the judicial system.
Lastly, it is fallacious that Mediation (ADR) is cheaper, quicker and can happen anytime, anywhere. If it was the case, then why did the Woolf Reforms find it so difficult to gain access to research material and had to implement the Woolf reforms on minimal substance and statistics?
Arlene McCarthy's reports have taken over a year to draft, are nonsensical, unintelligent, possibly criminal, shoddy, inaccurate and disastrous.
So much for European Year 2007 being the year of "Equality and Non-Discrimination"
posted by Lesley McDade at 11:42 pm
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