European Union and Competition
The European Union's model is set up on the premis of "competition". There is a problem:
1. The Danish abstained from the Consultation on the Subsidiary Principle in relation to the Directive on Mediation.
2. The Japanese use the concept of "Alternative Dispute Resolution" ie Mediation as a cultural feature of their society.
3. England & Wales via the Woolf Reforms and the Access to Justice Act 1999 created in law the ability of ADR / Mediation to come "within" the judicial system via CPR Rule 26 and also to be practised by lawyers within the legal profession. My in-house knowledge established that this concept was being used by the Jewish culture via America to impact on England & Wales and the model we received and experience is not the same as the Japanese model: the E&W model is a "coercive regime" operational in the courts under the Woolf Reforms is Jewish/American (Clinton) substantively in orientation and has now been promulgated in Scotland and Europe via the processing of the Directive on Mediation Consultation Paper at Subsidiarity level.
4. Europe and the Directive on Mediation was passed by the European Parliament having processed 2 published responses out of 27. Of the 27 responses my response requested the "Competition Model" and this model is correctly aligned to the purpose of the European Union - competition. The processing of the "coercive regime" model following the English & Welsh implementation within the judiciary and legal profession by Arlene McCarthy MEP, also interviewed 5 experts - she calls experts and which I do not. This consultation absolutely refused to interview myself on the premis of the "competition model" and as such DEMOCRACY did not occur via the European Parliament. This Directive on Mediation should now be nearing its harmonised conclusion within Europe.
I write this post because I am concerned that there is to be an Alternative Dispute Resolution Conference in Edinburgh on 22 June 2009 by the Royal Society of Edinburgh entitled "Establishing Scotland as World Leader?"
Another site promoting the same Conference informs the conference is entitled : "Alternative Dispute Resolution - SAVING TIME AND MONEY IN RECESSION‏"
Speakers are :
- Machteld Pel, Director, Netherlands Court-Annexed Mediation Agency
- Fergus Ewing MSP, Minister for Community Safety, The Scottish Government
- Len Bunton, Immediate past Chairman, The Chartered Institute of Arbitrators Scotland
- Ewan Malcolm, Chief Executive, Scottish Mediation Network
- Ian Smart, President, The Law Society of Scotland
- John Sturrock QC, Chief Executive, Core Solutions
- Dr Bryan Clark, Reader, Law School, University of Strathclyde
- The Hon Lord Dervaird (Prof. John Murray Q.C.), Scottish Council for International Arbitration (SCIA)
- Karl Mackie, Chief Executive, The Centre for Effective Dispute Resolution (CEDR)
I have a particular issue with the fact that as a British subject by birth and a European Citizen I cannot influence and lobby Europe to DEMOCRATICALLY process mediation in society and that I am being overborne by American/Jewish conceptually. The American/Jewish model is linked to "quicker and cheaper" but fails to deal with the issue that ADR can and does bypass the rule of law absolutely. Moreover, the concept is actually about "compromise" ... of the rule of law.
As a student of law with an Hons LLB degree in English law and having worked in the top law firms in London as a paralegal in litigation I find it fundamentally insulting that I can study law for 4 years as a degree course at a British university and then find I can, if I do traineeship, be Law Society accredited in ADR (but not all legal areas) so as to undermine the very subject I intended to study. Moreover, the topic I excel in is "Jurisprudence" - the science and theory of human law. Whilst this field of study is usually known as philosophy it is not actually philosophy but "scientific" as it requires evidence where possible and logic and reason over hypothesis, ie hypothesis need to be proved!!
My studies establish that mediation can exist in a democracy but in order for it not to undermine the application of the rule of law (universally) it needs to be removed from the judiciary and the legal profession to its own professionalism, because the concept is actually "polarised". Either the judge decides or the parties decide but not in the same institution. You apply law or, you don't and compromise it, which should be by "choice" in a safe and just society.
I therefore have serious concerns that Scotland wishes to be "World Leaders" in this concept that would undermine by compromise the application of the rule of law. Moreover, I highlighted in my dissertation that ADR clauses are contained in the Arbitration Act, thus bypassing the privatised application of the rule of law. I prefer litigation and the public nature of legal processing because I don't like issues to be "hidden".
ADR however, "hides" society - the issues are (1) what are we attempting to hide and (2) why are we attempting to hide issues in society. Therefore if someone informs you they are using mediation, you know that it is not because it is quicker, or cheaper, or a cultural thing, it is because they want something (a) hidden by means of a gagging confidentiality agreement and (b) they wish to bypass the application of the (universal) rule of law. This, I do not consider leads to a safe and just society.
Furthermore, there are wider implications - history is affected detrimentally and also the ability of the media to publish information concerning potentially serious issues which should rightly be featured in the public domain and be historical as per research source material.
Which makes me raise a further issue - our legal system utilises two methodologies - case precedent which requires "ratio decidendi" : judicial reasoning and possibly "obita dicta" to signpost laws potential future direction via persuasive arguments. The case precedent is known as "ought" law and is based on "reason-able-ness". Statute law "is" the law and is created by the legislature via the political domain. The point I am getting at is a serious one - if Judges and the legal profession do not focus on the application of the rule of law via litigation (public) or arbitration (private) then the system is largely political. If the law is largely political and "is" the law, then so long as the legislature are capable practically and intelligently all well and good. However, the ability of the judiciary to "reason" via deductive reasoning, analysis, induction and hypothesis, if needs must, IS our ability to be seen to be INTELLIGENT. Why then would we want to be seen to be Establishing ourselves as World Leaders in compromise - based on quicker and cheaper. The Royal Society of Edinburgh appear to be dim whits on this issue.
I have noticed that rather than questioning what they are actually doing to society across Europe, everyone appears to be quite happy to (a) ignore my research and thinking to the point of being undemocratic and (b) regurgitating the American/Jewish nonsense we have via the Woolf Reforms.
Why would Lord Woolf state in his report "litigation will be avoided whenever possible" in a report entitled "Access to Justice". We are being hoodwinked that ADR is a form of Justice which it is not - it is compromise of Justice. The spin and irony should be crystal clear, not least to the intelligent amongst us. Lord Woolf himself should have known better - as a judge what did he think he was going to do on the Bench / Circuit if not judge - why the need for a "coercive regime" with a material change in the legal principles from equality, fairness, impartiality and justice to proportionality, expedition, economy and he did say equality but he meant ADR so I call it "contemporary equality" because it is possible for the parties to agree 50:50 howsoever unlikely given the concept utilises psychological techniques.
But what are you compromising - well the example given in the training programmes is the 'cherry stone in the yogurt pot'. If litigation or arbitration only one party can win:lose - so they say ADR is win:win. The concept is "gold will be left on the table", ie both parties will walk away with something rather than one with nothing. However, if you are the unfortunate person afflicted by a cherry stone, you might need all the damages you could receive from a court and the press might want to know that there is a potential issue as may history especially if you are in Who's Who / Debretts. But what you are engaged in is compromising what you could potentially/actually get through litigation - cheaper and quicker to get it but less in any event of what you could have achieved via the courts. If you are terminally ill that may be the necessary consideration, etc. But where does "safe and just" society come into this where you are gagged by confidentiality clauses effectively "hiding you and the issues". And if society becomes built on this compromised deck of cards, what happens when a card shifts, ie someone finds out possibly on death via probate papers that their really nice grandfather was a shyster of the ugliest kind.
However, I have another point - the issue of the regurgitated American/Jewish model globally without question. This in my view has the appearance of subtly overriding deemed intelligent people in society's ability to be "intelligent". Therefore, I am questioning is it that the intelligent layer are only really clever - and a degree nowadays only establishes clever or, is there a cult issue ie brainwashing by not appearing capable of questioning, or a fear of challenging authority and being seen to be able to do this. The issue I raise is very very serious concerning Jurisprudence, the necessary research has not been done as to why the Danish abstained from the Directive process; what the cultural issues are concerning the Japanese, and the material differences with the Woolf Reforms; what the "intelligence" issues are concerning the American/Jewish model quicker and cheaper, and why my model - the Competition model based on logic and reason had no significant impact democratically whilst following the European MODEL of "competition" and I appear covered up.
I have also seen that it is coming into the NHS as "no fault compensation" in Scotland via Nicola Sturgeon SNP MSP - I have not been able to analysis this and why the name shift from ADR or IDS or mediation. I have also noticed that Lord Woolf and Cherie Blair (spouse of ex-Prime Minister Tony Blair) are bringing the concept further into society WITHOUT APPARENT DEBATE in accountancy. Bear in mind this concept "hides" society - I am on immediate notice that there is something to HIDE when it is being used.
Lastly, I do not live in a democracy, and I doubt that many of you believe you live in a democracy at the moment either. I put "rotten egg" down every party on my European elections ballot because (a) I walked into the polling station NOT knowing any candidate on the ballot and (b) not knowing what any party stood for on policies. There was "NO INFORMATION" other than, as a neighbour pointed out, who was in similar predicament on party policies, the BNP had beside their box "British Jobs". I therefore chose to spoil the ballot because at least it would still have to be counted, if not framed!! If that is the extent of democracy is to turn up and spoil the ballot something is clearly remiss. The Expenses debacle I notice had a Public Scrutiny Committee consultation paper out since April, the debacle hit in May, and the consultation closed first week of June - a bit short given the severity of the debacle and the only knowledge that there was a Consultation paper was because I wrote to my MP to establish he wasn't abusing his expenses which he claimed he was not and provided me with the details of the Consultation paper. There appears to me to be a serious lack of press coverage on necessary democratic issues ... and I would rather they focused on "safe and just" / intelligent issues rather than skeletons in closets news etc. We are in a mess FOR A REASON, I do not see a lot of humble pie in politics at the extent of our disgrace. The Royal Society of Edinburgh - establishing Scotland as World Leaders - what symbol should compromise look like!
The real issue in society is that our judicial systems are NOT fit for purpose for the 21st century. Justice requires "equality, fairness, impartiality and justice" in order to keep society safe and just. Litigation is the purest element of this albeit arbitration does apply the rule of law in a privatised sense. Publicity is what keeps us safe and just. If we are entertaining Mediation/ADR/Compromise as quicker and cheaper as the reason for doing so ... do you really consider that is acceptable. Lastly, concerning Europe if the courts and litigation or arbitration are not utilised to their full capacity, ie not procedurally doing justice but substantively doing justice then it impacts on our ability to import European judicial reasoning by accessing Europe via the European Court of Justice and article 234 preliminary references - a question goes to Europe, not the judicial case papers, the answer is imported into the national layer of judgment. Why would we prevent the impact of this layer and or its accessibility by using ADR "within" the judiciary and legal profession. What is wrong with Europe and "Competition" as the European model and purpose. What is wrong with being intelligent, progress orientated via judicial reasoning balancing the political domain via challenge. What is wrong with having a choice to litigate/arbitrate OR mediate - why the need for a coercive regime and the orientation of key societal principles to quicker and cheaper over improving the judicial system to the 21st Century. Who is measuring the judicial and legal profession abuses in the judicial and legal system and doing the statistical analysis pre-Woolf/post-Woolf. Intelligence is necessary in a safe and just society : what are we currently engaged in hiding and why do we want to be seen to be establishing ourselves as World Leaders in this concept. The World Leaders in ADR are the Japanese.
1. The Danish abstained from the Consultation on the Subsidiary Principle in relation to the Directive on Mediation.
2. The Japanese use the concept of "Alternative Dispute Resolution" ie Mediation as a cultural feature of their society.
3. England & Wales via the Woolf Reforms and the Access to Justice Act 1999 created in law the ability of ADR / Mediation to come "within" the judicial system via CPR Rule 26 and also to be practised by lawyers within the legal profession. My in-house knowledge established that this concept was being used by the Jewish culture via America to impact on England & Wales and the model we received and experience is not the same as the Japanese model: the E&W model is a "coercive regime" operational in the courts under the Woolf Reforms is Jewish/American (Clinton) substantively in orientation and has now been promulgated in Scotland and Europe via the processing of the Directive on Mediation Consultation Paper at Subsidiarity level.
4. Europe and the Directive on Mediation was passed by the European Parliament having processed 2 published responses out of 27. Of the 27 responses my response requested the "Competition Model" and this model is correctly aligned to the purpose of the European Union - competition. The processing of the "coercive regime" model following the English & Welsh implementation within the judiciary and legal profession by Arlene McCarthy MEP, also interviewed 5 experts - she calls experts and which I do not. This consultation absolutely refused to interview myself on the premis of the "competition model" and as such DEMOCRACY did not occur via the European Parliament. This Directive on Mediation should now be nearing its harmonised conclusion within Europe.
I write this post because I am concerned that there is to be an Alternative Dispute Resolution Conference in Edinburgh on 22 June 2009 by the Royal Society of Edinburgh entitled "Establishing Scotland as World Leader?"
Another site promoting the same Conference informs the conference is entitled : "Alternative Dispute Resolution - SAVING TIME AND MONEY IN RECESSION‏"
Speakers are :
- Machteld Pel, Director, Netherlands Court-Annexed Mediation Agency
- Fergus Ewing MSP, Minister for Community Safety, The Scottish Government
- Len Bunton, Immediate past Chairman, The Chartered Institute of Arbitrators Scotland
- Ewan Malcolm, Chief Executive, Scottish Mediation Network
- Ian Smart, President, The Law Society of Scotland
- John Sturrock QC, Chief Executive, Core Solutions
- Dr Bryan Clark, Reader, Law School, University of Strathclyde
- The Hon Lord Dervaird (Prof. John Murray Q.C.), Scottish Council for International Arbitration (SCIA)
- Karl Mackie, Chief Executive, The Centre for Effective Dispute Resolution (CEDR)
I have a particular issue with the fact that as a British subject by birth and a European Citizen I cannot influence and lobby Europe to DEMOCRATICALLY process mediation in society and that I am being overborne by American/Jewish conceptually. The American/Jewish model is linked to "quicker and cheaper" but fails to deal with the issue that ADR can and does bypass the rule of law absolutely. Moreover, the concept is actually about "compromise" ... of the rule of law.
As a student of law with an Hons LLB degree in English law and having worked in the top law firms in London as a paralegal in litigation I find it fundamentally insulting that I can study law for 4 years as a degree course at a British university and then find I can, if I do traineeship, be Law Society accredited in ADR (but not all legal areas) so as to undermine the very subject I intended to study. Moreover, the topic I excel in is "Jurisprudence" - the science and theory of human law. Whilst this field of study is usually known as philosophy it is not actually philosophy but "scientific" as it requires evidence where possible and logic and reason over hypothesis, ie hypothesis need to be proved!!
My studies establish that mediation can exist in a democracy but in order for it not to undermine the application of the rule of law (universally) it needs to be removed from the judiciary and the legal profession to its own professionalism, because the concept is actually "polarised". Either the judge decides or the parties decide but not in the same institution. You apply law or, you don't and compromise it, which should be by "choice" in a safe and just society.
I therefore have serious concerns that Scotland wishes to be "World Leaders" in this concept that would undermine by compromise the application of the rule of law. Moreover, I highlighted in my dissertation that ADR clauses are contained in the Arbitration Act, thus bypassing the privatised application of the rule of law. I prefer litigation and the public nature of legal processing because I don't like issues to be "hidden".
ADR however, "hides" society - the issues are (1) what are we attempting to hide and (2) why are we attempting to hide issues in society. Therefore if someone informs you they are using mediation, you know that it is not because it is quicker, or cheaper, or a cultural thing, it is because they want something (a) hidden by means of a gagging confidentiality agreement and (b) they wish to bypass the application of the (universal) rule of law. This, I do not consider leads to a safe and just society.
Furthermore, there are wider implications - history is affected detrimentally and also the ability of the media to publish information concerning potentially serious issues which should rightly be featured in the public domain and be historical as per research source material.
Which makes me raise a further issue - our legal system utilises two methodologies - case precedent which requires "ratio decidendi" : judicial reasoning and possibly "obita dicta" to signpost laws potential future direction via persuasive arguments. The case precedent is known as "ought" law and is based on "reason-able-ness". Statute law "is" the law and is created by the legislature via the political domain. The point I am getting at is a serious one - if Judges and the legal profession do not focus on the application of the rule of law via litigation (public) or arbitration (private) then the system is largely political. If the law is largely political and "is" the law, then so long as the legislature are capable practically and intelligently all well and good. However, the ability of the judiciary to "reason" via deductive reasoning, analysis, induction and hypothesis, if needs must, IS our ability to be seen to be INTELLIGENT. Why then would we want to be seen to be Establishing ourselves as World Leaders in compromise - based on quicker and cheaper. The Royal Society of Edinburgh appear to be dim whits on this issue.
I have noticed that rather than questioning what they are actually doing to society across Europe, everyone appears to be quite happy to (a) ignore my research and thinking to the point of being undemocratic and (b) regurgitating the American/Jewish nonsense we have via the Woolf Reforms.
Why would Lord Woolf state in his report "litigation will be avoided whenever possible" in a report entitled "Access to Justice". We are being hoodwinked that ADR is a form of Justice which it is not - it is compromise of Justice. The spin and irony should be crystal clear, not least to the intelligent amongst us. Lord Woolf himself should have known better - as a judge what did he think he was going to do on the Bench / Circuit if not judge - why the need for a "coercive regime" with a material change in the legal principles from equality, fairness, impartiality and justice to proportionality, expedition, economy and he did say equality but he meant ADR so I call it "contemporary equality" because it is possible for the parties to agree 50:50 howsoever unlikely given the concept utilises psychological techniques.
But what are you compromising - well the example given in the training programmes is the 'cherry stone in the yogurt pot'. If litigation or arbitration only one party can win:lose - so they say ADR is win:win. The concept is "gold will be left on the table", ie both parties will walk away with something rather than one with nothing. However, if you are the unfortunate person afflicted by a cherry stone, you might need all the damages you could receive from a court and the press might want to know that there is a potential issue as may history especially if you are in Who's Who / Debretts. But what you are engaged in is compromising what you could potentially/actually get through litigation - cheaper and quicker to get it but less in any event of what you could have achieved via the courts. If you are terminally ill that may be the necessary consideration, etc. But where does "safe and just" society come into this where you are gagged by confidentiality clauses effectively "hiding you and the issues". And if society becomes built on this compromised deck of cards, what happens when a card shifts, ie someone finds out possibly on death via probate papers that their really nice grandfather was a shyster of the ugliest kind.
However, I have another point - the issue of the regurgitated American/Jewish model globally without question. This in my view has the appearance of subtly overriding deemed intelligent people in society's ability to be "intelligent". Therefore, I am questioning is it that the intelligent layer are only really clever - and a degree nowadays only establishes clever or, is there a cult issue ie brainwashing by not appearing capable of questioning, or a fear of challenging authority and being seen to be able to do this. The issue I raise is very very serious concerning Jurisprudence, the necessary research has not been done as to why the Danish abstained from the Directive process; what the cultural issues are concerning the Japanese, and the material differences with the Woolf Reforms; what the "intelligence" issues are concerning the American/Jewish model quicker and cheaper, and why my model - the Competition model based on logic and reason had no significant impact democratically whilst following the European MODEL of "competition" and I appear covered up.
I have also seen that it is coming into the NHS as "no fault compensation" in Scotland via Nicola Sturgeon SNP MSP - I have not been able to analysis this and why the name shift from ADR or IDS or mediation. I have also noticed that Lord Woolf and Cherie Blair (spouse of ex-Prime Minister Tony Blair) are bringing the concept further into society WITHOUT APPARENT DEBATE in accountancy. Bear in mind this concept "hides" society - I am on immediate notice that there is something to HIDE when it is being used.
Lastly, I do not live in a democracy, and I doubt that many of you believe you live in a democracy at the moment either. I put "rotten egg" down every party on my European elections ballot because (a) I walked into the polling station NOT knowing any candidate on the ballot and (b) not knowing what any party stood for on policies. There was "NO INFORMATION" other than, as a neighbour pointed out, who was in similar predicament on party policies, the BNP had beside their box "British Jobs". I therefore chose to spoil the ballot because at least it would still have to be counted, if not framed!! If that is the extent of democracy is to turn up and spoil the ballot something is clearly remiss. The Expenses debacle I notice had a Public Scrutiny Committee consultation paper out since April, the debacle hit in May, and the consultation closed first week of June - a bit short given the severity of the debacle and the only knowledge that there was a Consultation paper was because I wrote to my MP to establish he wasn't abusing his expenses which he claimed he was not and provided me with the details of the Consultation paper. There appears to me to be a serious lack of press coverage on necessary democratic issues ... and I would rather they focused on "safe and just" / intelligent issues rather than skeletons in closets news etc. We are in a mess FOR A REASON, I do not see a lot of humble pie in politics at the extent of our disgrace. The Royal Society of Edinburgh - establishing Scotland as World Leaders - what symbol should compromise look like!
The real issue in society is that our judicial systems are NOT fit for purpose for the 21st century. Justice requires "equality, fairness, impartiality and justice" in order to keep society safe and just. Litigation is the purest element of this albeit arbitration does apply the rule of law in a privatised sense. Publicity is what keeps us safe and just. If we are entertaining Mediation/ADR/Compromise as quicker and cheaper as the reason for doing so ... do you really consider that is acceptable. Lastly, concerning Europe if the courts and litigation or arbitration are not utilised to their full capacity, ie not procedurally doing justice but substantively doing justice then it impacts on our ability to import European judicial reasoning by accessing Europe via the European Court of Justice and article 234 preliminary references - a question goes to Europe, not the judicial case papers, the answer is imported into the national layer of judgment. Why would we prevent the impact of this layer and or its accessibility by using ADR "within" the judiciary and legal profession. What is wrong with Europe and "Competition" as the European model and purpose. What is wrong with being intelligent, progress orientated via judicial reasoning balancing the political domain via challenge. What is wrong with having a choice to litigate/arbitrate OR mediate - why the need for a coercive regime and the orientation of key societal principles to quicker and cheaper over improving the judicial system to the 21st Century. Who is measuring the judicial and legal profession abuses in the judicial and legal system and doing the statistical analysis pre-Woolf/post-Woolf. Intelligence is necessary in a safe and just society : what are we currently engaged in hiding and why do we want to be seen to be establishing ourselves as World Leaders in this concept. The World Leaders in ADR are the Japanese.
posted by Lesley McDade at 12:55 am
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