Gagging Clauses in Compromise Agreements
This week some scrutiny was given concerning "gagging clauses" in the media in relation to NHS hospitals and specifically Stafford Hospital. There appears to be a recognition of the danger to society where there is universal gagging clauses within an organisation which is affecting openess and transparency. Gagging clauses have been specifically undermining the efficacy of the Public Disclosure Act relating to whistleblowing and thereby lowering standards in society.
Now there appears to be some light coming through such that gagging clauses in compromise agreements otherwise known as (ADR - Alternative Dispute Resolution) (Mediation) in the NHS will not be allowed to have the effect of gagging an employee.
An interesting article is
BBC article "NHS 'Gagging clauses' must end, says Health Secretary" on 14/03/2013 (Click here)
Compromise Agreements came in with the Access to Justice Act 1999 and Lord Woolf/Lord Derry Irvine of Lairg and Lord Mackay of Clashfern subsequent to Lord Woolf. They historically were in the legal system of England & Wales from about 1993 becoming law in 1999. Ever since I came across ADR I have sensed the danger to society whereby a concept could undermine the rule of law, which in Jurisprudence, to effect a safe society has to be maintained. Only where a law is unjust may it not be adhered to. I have written several articles but never been published as academia and mainstream newspapers would not publish - it was not for the want of trying - hence this blog is the only way I can have a voice and get out that which is within me which I do as a legal activist or societal guardian.
When I was a paralegal I attended an inhouse lecture at S J Berwin & Co given by David Shapiro of Jamesendispute. David was an American lawyer over here promoting ADR and he claimed that he and five others brought the concept to America. He referenced President Nixon so I presume it was in the late 1960's and early 1970's that David and his colleagues were practising ADR. The version that hit the English & Welsh system in 1999 appears to be the version he was promoting, therefore American Jewish and is based on "cheaper and quicker" rather than what it is the Japanese concept of mediation based on "culture: to save loss of face". At the seminar David Shapiro also mentioned that some "states" of America had outlawed the practice of ADR.
Unfortunately, my studies only covered the Woolf Reforms in England & Wales but I would have liked to have extended my studies in several directions. One direction (and perhaps someone in America can pick this up as a research paper) would have been to see what occurred in America in the 60's/70's under Nixon, which states adopted ADR in their judicial and legal systems and which states then subsequently outlawed them and when and for what reason(s). The system of ADR that came into global jurisdictions in 1999, did so via President Bill Clinton, and the research needs to cover what occurred via his administration such that this concept came to the UK via Woolf and Irvine of Lairg. As I am unable to research the American market either currently or historically for such information this I think would, over 10 years on from Woolf in England, highlight the cracks in the walls (lowering of standards) that current global jurisdictions can expect and may mean that this concept is altered or outlawed over here too.
However, it is my belief that ADR going into global legal and judicial jurisdictions is more sinister and that to undermine the rule of law of a country is to "invade" it and that what we see occurring is the third world war in all but name currently being promoted as a recession - (I know at least some people are thinking it and I have read one article in a newspaper from a banker actually saying it - so its not just me). This is further suggested in light of the Iraq war which I believe was a decoy war and overthrew our MOD with lies of WMD in 45 minutes leading to a false premis for war : "An UNJUST WAR", we are now seeing our banking sector fail and Cyprus and the euro is the latest casuality needing a quick fix, but further,the Arab Spring and such issues as mass youth unemployment across Europe all indicate that we are in the throes of a war which has not yet happened and may be being averted. Headlines such as NHS hospitals no longer to use gagging clauses in compromise agreements appears to me to be "light" on the situation and maybe it is the case that it is time to look academically at a concept that had the ability to "change" western culture to a "hidden" society.
Other research projects I would have been interested in are "Why did the Danish abstain from the Directive on Mediation"? / Why do the Japanese need to show loss of face using ADR rather than litigation? / What happens with Japanese litigation? in contrast to ADR? And research in the UK of specifically the English & Welsh legal system and the Scots legal system using ADR and is it really quicker and cheaper or is their a significant loss of openness and transparency by a hidden society. What has the impact of ADR been in the UK - 10 years hence?
I would be happy to publish on my blog any paper that someone writes covering ADR especially if they can cover aspects of my own research and areas where I cannot get to. The table that I created on my paper a couple of blogs down should help you and is "McDade's Paradox"!!! as you can see whether ADR is outwith or within the legal and judicial system it always exists outside of it as it removes the parties outside the public domain, as such it is absurd as a concept within this model.
Just to explain by analogy the imbalance to society. Two little boys have biscuits. One boy (litigation) has a chocolate biscuit, the other boy (mediation ADR) has a digestive biscuit. What is happening to society since 1999 is the boy with the digestive is eating all of his biscuit and then asking litigation for a bite of the chocolate digestive and taking a big bite or eating all of it. There is therefore an imbalance in the market place for dispute resolution be it litigation, mediation or even arbitration. There will still be the same number of disputes in society, but how they are dealt with makes all the difference. Litigation is public domain applying the rule of law (universally), arbitration is private domain applying the rule of law, mediation is private domain and almost anything goes as a remedy which is consequently hidden by gagging clauses. By mediation biting into the litigation biscuit more of society becomes hidden. I argue when a writ is issued in the public domain of litigation this is like the Public Disclosure Act in action - it is meant to see the light of day via a judgment, so mediation has no place in litigation and lawyers and barristers should not practice it. Whilst I accept there are problems with the system of litigation, in concept form, litigation is the ultimate outcome - universal application of the rule of law in impact on society by either reiterating what the law is, or by challenging what the law ought to be (the absolute ultimate goal) and the quicker you get there the better as it makes for a safe and just society.
Now there appears to be some light coming through such that gagging clauses in compromise agreements otherwise known as (ADR - Alternative Dispute Resolution) (Mediation) in the NHS will not be allowed to have the effect of gagging an employee.
An interesting article is
BBC article "NHS 'Gagging clauses' must end, says Health Secretary" on 14/03/2013 (Click here)
Compromise Agreements came in with the Access to Justice Act 1999 and Lord Woolf/Lord Derry Irvine of Lairg and Lord Mackay of Clashfern subsequent to Lord Woolf. They historically were in the legal system of England & Wales from about 1993 becoming law in 1999. Ever since I came across ADR I have sensed the danger to society whereby a concept could undermine the rule of law, which in Jurisprudence, to effect a safe society has to be maintained. Only where a law is unjust may it not be adhered to. I have written several articles but never been published as academia and mainstream newspapers would not publish - it was not for the want of trying - hence this blog is the only way I can have a voice and get out that which is within me which I do as a legal activist or societal guardian.
When I was a paralegal I attended an inhouse lecture at S J Berwin & Co given by David Shapiro of Jamesendispute. David was an American lawyer over here promoting ADR and he claimed that he and five others brought the concept to America. He referenced President Nixon so I presume it was in the late 1960's and early 1970's that David and his colleagues were practising ADR. The version that hit the English & Welsh system in 1999 appears to be the version he was promoting, therefore American Jewish and is based on "cheaper and quicker" rather than what it is the Japanese concept of mediation based on "culture: to save loss of face". At the seminar David Shapiro also mentioned that some "states" of America had outlawed the practice of ADR.
Unfortunately, my studies only covered the Woolf Reforms in England & Wales but I would have liked to have extended my studies in several directions. One direction (and perhaps someone in America can pick this up as a research paper) would have been to see what occurred in America in the 60's/70's under Nixon, which states adopted ADR in their judicial and legal systems and which states then subsequently outlawed them and when and for what reason(s). The system of ADR that came into global jurisdictions in 1999, did so via President Bill Clinton, and the research needs to cover what occurred via his administration such that this concept came to the UK via Woolf and Irvine of Lairg. As I am unable to research the American market either currently or historically for such information this I think would, over 10 years on from Woolf in England, highlight the cracks in the walls (lowering of standards) that current global jurisdictions can expect and may mean that this concept is altered or outlawed over here too.
However, it is my belief that ADR going into global legal and judicial jurisdictions is more sinister and that to undermine the rule of law of a country is to "invade" it and that what we see occurring is the third world war in all but name currently being promoted as a recession - (I know at least some people are thinking it and I have read one article in a newspaper from a banker actually saying it - so its not just me). This is further suggested in light of the Iraq war which I believe was a decoy war and overthrew our MOD with lies of WMD in 45 minutes leading to a false premis for war : "An UNJUST WAR", we are now seeing our banking sector fail and Cyprus and the euro is the latest casuality needing a quick fix, but further,the Arab Spring and such issues as mass youth unemployment across Europe all indicate that we are in the throes of a war which has not yet happened and may be being averted. Headlines such as NHS hospitals no longer to use gagging clauses in compromise agreements appears to me to be "light" on the situation and maybe it is the case that it is time to look academically at a concept that had the ability to "change" western culture to a "hidden" society.
Other research projects I would have been interested in are "Why did the Danish abstain from the Directive on Mediation"? / Why do the Japanese need to show loss of face using ADR rather than litigation? / What happens with Japanese litigation? in contrast to ADR? And research in the UK of specifically the English & Welsh legal system and the Scots legal system using ADR and is it really quicker and cheaper or is their a significant loss of openness and transparency by a hidden society. What has the impact of ADR been in the UK - 10 years hence?
I would be happy to publish on my blog any paper that someone writes covering ADR especially if they can cover aspects of my own research and areas where I cannot get to. The table that I created on my paper a couple of blogs down should help you and is "McDade's Paradox"!!! as you can see whether ADR is outwith or within the legal and judicial system it always exists outside of it as it removes the parties outside the public domain, as such it is absurd as a concept within this model.
Just to explain by analogy the imbalance to society. Two little boys have biscuits. One boy (litigation) has a chocolate biscuit, the other boy (mediation ADR) has a digestive biscuit. What is happening to society since 1999 is the boy with the digestive is eating all of his biscuit and then asking litigation for a bite of the chocolate digestive and taking a big bite or eating all of it. There is therefore an imbalance in the market place for dispute resolution be it litigation, mediation or even arbitration. There will still be the same number of disputes in society, but how they are dealt with makes all the difference. Litigation is public domain applying the rule of law (universally), arbitration is private domain applying the rule of law, mediation is private domain and almost anything goes as a remedy which is consequently hidden by gagging clauses. By mediation biting into the litigation biscuit more of society becomes hidden. I argue when a writ is issued in the public domain of litigation this is like the Public Disclosure Act in action - it is meant to see the light of day via a judgment, so mediation has no place in litigation and lawyers and barristers should not practice it. Whilst I accept there are problems with the system of litigation, in concept form, litigation is the ultimate outcome - universal application of the rule of law in impact on society by either reiterating what the law is, or by challenging what the law ought to be (the absolute ultimate goal) and the quicker you get there the better as it makes for a safe and just society.
posted by Lesley McDade at 1:45 pm
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