【举案】林一飞：不调解就罚？ 英国涉ADR司法实践

英国法院有一系列案例涉及调解。这些发生在英国民事诉讼规则颁布之前和之后的案例，体现了英国法院对于调解态度的变迁。...

声明

本文首发于中国仲裁微信公号（cnarb1），推送已获作者林一飞博士授权，衷心感谢作者对欧洲法视界的支持。篇幅有限，本次推送略去注释

英国民事诉讼规则（CPR）第1.4条规定，法院应当通过案件的积极有效管理来促进实现案件能够公正审理这一终极目标，“……鼓励当事人使用替代性争议解决方式（ADR）的程序，如果法院认为适用这样的程序是合适和便利的话”。而在相关注解中，则提到当事人的责任包括要郑重考虑使用ADR程序以解决他们诉求的可能性以及与相关费用责任的承担。CPR第26.4条（为诉讼和解而中止诉讼程序）规定如下：“(1)当事人在完成案件分配问题表并提交法院时，可通过书面形式请求法院中止诉讼程序的进行，由当事人尝试通过替代性解决方式或其他方式解决纠纷。”CPR通过强制当事人在某些案件中实行诉前议定书制度、要求律师在介入案件前获得更多的关于当事人案件的信息以赋予法院关于诉讼费用的更多裁量权等措施，促进当事人采取调解等ADR的方式。通过这些方式，包括调解在内的ADR成为英国诉讼中非常重要且经常为当事人所采用的方式。

英国法院有一系列案例涉及调解。这些发生在英国民事诉讼规则颁布之前和之后的案例，体现了英国法院对于调解态度的变迁。以下列举部分重要的案例。

Courtney& Fairbairn Ltd v.Tolaini (Hotels) Ltd

在该案中，丹宁勋爵在Courtney &Fairbairn Ltd v.Tolaini (Hotels) Ltd[1975]在谈到协商义务时，认为：“... the concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of parties when involved in negotiations. Each party to the negotiations is entitled to pursue his . . . own interest, so long as he avoids making misrepresentations. . . . Accordingly, a bare agreement to negotiate has no legal content”。他认为”...a contract to negotiate, like a contract to enter into a contract, is not a contract known to the law”。按照丹宁勋爵的观点，一个要协商的合同就像一个表示要订立合同的合同，并不是一个法律意义上的合同。

在这一阶段，基于协商意愿的合同内容具有不确定性，或者认为其仅仅是继续协商的协议，从而并不具有约束力。而1999年英国民事诉讼规则开始生效后，情况则开始发生变化。法院开始鼓励当事人使用各种ADR方式来解决争议。于是，一些不同于此前理念的案例出现了。

Cowl& Ors v. PlymouthCity Council

在该案中,Woolf法官指出了通过调解等替代性争议解决方式解决纠纷的必要性。正如其在判决书开头指出的：

The importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. Particularly in the case of these disputes both sides must by now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress.

The appeal also demonstrates that courts should scrutinize extremely carefully applications for judicial review in the case of applications of the class with which this appeal is concerned. The courts should then make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts. The legal aid authorities should co-operate in support of this approach.

Woolf法官认为，与其在诉讼中花费大量金钱，还不如考虑一下调解的可能性，类似的纠纷，当事人应尽可能采取调解等替代性争议解决方式解决。Woolf法官的判决明确了“先行调解”的原则，但该案引起不小的争议。尤其是，人们认为，对一些涉及法律问题、时间上拖不起或涉及当事人力量悬殊的案件，内部的复议、调解程序不一定是最好的选择。故不应将调解作为成为诉讼前的必经程序，从而英国法院开始在诉讼费用上想办法。于是，确立诉讼费用罚则的案例出现了。

Dunnettv Railtrack Plc

在2002 年的Dunnett v. Railtrack一案中，英国法院首次确立了诉讼费用罚则。据此，若当事人拒绝法院提出的以调解方式解决纠纷的建议，则胜诉一方也可能承担案件的诉讼费用。该案源于Dunnett的三匹马在穿越农场靠近铁路线的一个大门时被火车撞死。农场和铁路线之间原来有一扇自动开闭的门，后被告替换了该自动门，但门未能自动关闭，从而原告的三匹马窜入铁路被轧死。Dunnett声称，该大门应当配有足够的锁扣设置，以保证沿铁路线的小路能够使用而不致于伤及她农场中的马匹。她遂就责任问题对Railtrack提出诉讼，败诉后再提出了上诉。法院认为类似的纠纷适宜调解，建议双方通过调解解决纠纷。Railtrack过去曾提出过向Dunnett支付少量金额以了结纠纷，但被Dunnett拒绝，在上诉中该公司拒绝调解，不愿将原提议支付的金额提高。Railtrack在上诉中也胜诉，但由于其拒绝调解，被上诉法院在诉讼费用上进行了惩罚，其诉讼费用没有得到支持。

在该案中，法官认为：

10.The court has not seen everything which passed between the parties. From something that Mr Lord told us, it appears that passions were running fairly high on the claimant's side in relation to the death of her horses and the attitude that Rail track, no doubt on sound legal advice, were adopting. It appears to me that this was a case in which, at any rate before the trial, a real effort should have been made by way of alternative dispute resolution to see if the matter could be satisfactorily resolved by an experienced mediator, without the parties having to incur the no doubt heavy legal costs of contesting the matter at trial. There is no evidence that this was ever suggested by the court. I say nothing more about that except to say that it is understandable, in these circumstances, that passions may have been running fairly high.

11.However, the time did come when this court in terms suggested that this was a case for alternative dispute resolution. CPR 1.4 reads:

"(1)The court must further the overriding objective by actively managing cases.

(2)Active case management includes-

...

(e)encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure."

12. In the helpful notes to that rule in the Autumn 2001 edition of the White Book Service 2001, the editors write on page 18:

"The encouragement and facilitating of ADR by the court is an aspect of active case management which in turn is an aspect of achieving the overriding objective. The parties have a duty to help the court in furthering that objective and, therefore, they have a duty to consider seriously the possibility of ADR procedures being utilised for the purpose of resolving their claim or particular issues within it when encouraged by the court to do so. The discharge of the parties' duty in this respect may be relevant to the question of costs because, when exercising its discretion as to costs, the court must have regard to all the circumstances, including the conduct of all the parties (r.44.3(4), seer.44.5)."

13.The value of that observation is that it draws attention to the fact that the parties themselves have a duty to further the overriding objective. That is said in terms in CPR 1.3. What is set out in CPR 1.4 is the duty of the court to further the overriding objective by active case management, which includes the feature to which I have referred.

14. Mr Lord, when asked by the court why his clients were not willing to contemplate alternative dispute resolution, said that this would necessarily involve the payment of money, which his clients were not willing to contemplate, over and above what they had already offered. This appears to be a misunderstanding of the purpose of alternative dispute resolution. Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide. Occasions are known to the court in claims against the police, which can give rise to as much passion as a claim of this kind where a claimant's precious horses are killed on a railway line, by which an apology from a very senior police officer is all that the claimant is really seeking and the money side of the matter falls away.

法官认为：被告拒绝调解的行为违反了CPR的相关规定，CPR鼓励当事人通过非诉途径解决纠纷而当事人负有协助法院义务的规定。法院有权综合考量当事人在诉前以及诉讼中包括和解尝试在内的各种行为，以决定当事人对诉讼费用的最终承担。本案的结果是，被告虽然获胜，但仍被判决承担了该案的诉讼费。这是一个里程碑式的判决。该案之后，正如法官所希望的，“It is to be hoped that any publicity given to this part of the judgment of the court will draw the attention of lawyers to their duties to further the overriding objective in the way that is set out in Part 1 of the Rules and to the possibility that, if they turn down out of hand the chance of alternative dispute resolution when suggested by the court, as happened on this occasion, they may have to face uncomfortable costs consequence.”

这就意味着：假如你不想面对不合意的费用承担结果，那么，尝试调解吧。

上述判决所确立的诉讼费用罚则虽对发挥调解等ADR方式有导向作用，但可能会陷入诉讼策略的范畴，从而被一方利用来损害他方当事人的合法权益，例如无理的一方借“诉讼费用罚则”逼迫另一方接受调解。在此后的相关判例中，英国法院对“诉讼费用罚则”作了适当修正，在有正当理由的情况下不适用上述案件所确立的“诉讼费用罚则”。

Leicester Circuits Ltd. v CoatesBrothers Plc

在该案中，双方同意在庭审前的2002年1月10日进行调解，但Coates于2002年1月8日退出了调解。原告胜诉。Coates提起了上诉，上诉法院改判了初审判决从而Coates在上诉审胜诉。由于Coates在初审调解时退出，Leiceste rCircuits Ltd应承担的诉讼费用减少。法官认为：

27． It seems to us that the unexplained withdrawal from an agreed mediation process was of significance to the continuation of this litigation. We do not for one moment assume that the mediation process would have succeeded, but certainly there is a prospect that it would have done if it had been allowed to proceed. That therefore bears on the issue of costs.

28． Trying to achieve a fair balance to reflect the issue of mediation, the outcome of the case, the correspondence which we have looked at and endeavored to summarise, we have come to this conclusion. As to the costs below, Leicester will pay the costs up to 1st January 2002 but there will be no order for costs thereafter. As to the costs of the appeal, in our judgment they should follow the event. Therefore Leicester will pay Coates' costs of the appeal.

该案中，上诉法院关于诉讼费用的判决再次确认了法院关于调解和其他ADR的立场，法院可以考虑对‘不合理’的行为在费用方面进行惩罚。Hurst v Leeming

此案原告以职业过失为由起诉他的律师，但被法院以缺乏依据为由驳回。在该案的诉讼费用承担问题上，原告声称他曾提议调解但遭被告拒绝，所以依照Dunnett案确立的原则，不能由他承担诉讼费用。法官认为，根据本案原告的性格和态度，被告有正当理由相信调解没有实际意义。Lightman法官在认可了Dunnett案诉讼费用惩罚原则的同时，根据该案的具体情况认为：In short, as it seems to me, Mr. Leeming reasonably and fairly took the perfectly justifiable view on the facts that, by reason of the character and attitude of Mr. Hurst, mediation had no real prospect of getting anywhere. That is not a view which is easily sustainable in any case, but, on the facts of this case, it is, sustained. For this reason I do not think that Mr. Leeming should be penalised or should be deprived of his full entitlement to costs.

他的理由有以下几点：

First, Mr. Hurst, though a solicitor, has appeared quite unable or unwilling to appreciate the full and clear explanation given refuting his claim. It needed no mediator to help him to evaluate the claim when furnished with the explanation by Mr. Leeming. I do not accept that as a mere "IT" solicitor he could not be expected to understand the partnership law issues involved.

Secondly, prior to the present action Mr. Hurst had already commenced two hopeless, and in my view vexatious, actions against Penningtons. I do not think that the commencement of those proceedings can have reflected a balanced view of their likely outcome.

Thirdly, Mr. Hurst is a bankrupt and has (and knows that he has) nothing to lose in the proceedings.

Fourthly, the evidence and pleadings in this case reveal that what is really "biting" Mr. Hurst, is the conviction that his former partners were fraudulent, and the conduct of the trial by his legal advisers let them get away with it. Yet at no time did Mr. Hurst ever plead or even allege fraud in the partnership action.

Fifthly, Mr. Hurst was out to obtain a substantial sum in the mediation process. He was not likely to accept any mediation which did not achieve that result, though his claim, as I have said, plainly entitled him to nothing.

据上，虽然出庭律师Leeming先生拒绝了调解，但是基于原告的品性、调解没有成功的现实可能性，而这些被证明是正当的，所以Leeming先生拒绝了调解，但法官还是支持了他关于诉讼费用的请求。

在上诉中，LORD JUSTICEKEENE对于这个结论，同样认为，“It may be unusual to reach such a conclusion that the other party is entitled to reject mediation because of the lack of any prospect of mediation succeeding, but in this case it seems to me that such conclusion was fully borne out by the evidence which was available.”

Halsey v.MiltonKeynes General NHS Trust

该案案情如下：Halsey83岁的丈夫伯特Bert在医院去世。医患双方就医务人员对Bert的死亡是否有过失存有争议。原告律师请求死亡赔偿金并提出通过调解解决纠纷，被告则认为他们没有任何责任，以本案不适合调解为由拒绝调解。被告胜诉。关于诉讼费用，原告认为本案应适用Dunnett案中确立的“诉讼费用罚则”，称被告拒绝调解，请求法官判令被告承担诉讼费用。原告的请求未获法官支持，遂提起上诉。上诉法官驳回了原告的上诉。法官的理由包括：被告认为对原告的指控其有牢固的抗辩基础、法院未建议或命令进行调解、原告的律师使用诉讼策略以及调解的费用将远远高于诉讼的费用等。

该案对之前确立的诉讼费用罚则进行了必要的调整及缓和。虽然调解通常较之诉讼更节省成本和更宽松，但对调解的适用必须加以合理限制。该案判决确立了两个重要的原则：一是不得强迫当事人调解；二是提出胜诉方不合理拒绝调解从而应承担诉讼费用的一方应承担举证责任。

法院在裁量当事人拒绝调解是否具有合理性时，应综合考量以争议的性质、案件的具体情况、是否尝试其他解决方式、调解的费用是否过高、是否会造成不利的迟延、是否具有合理的成功前景等，具体如下：

(a) The nature of the dispute. Even the most ardent supporters of ADR acknowledge that the subject-matter of some disputes renders them intrinsically unsuitable for ADR. The Commercial Court Working Party on ADR stated in 1999:

"The Working Party believes that there are many cases within the range of Commercial Court work which do not lend themselves to ADR procedures. The most obvious kind is where the parties wish the court to determine issues of law or construction which may be essential to the future trading relations of the parties, as under an on-going long term contract, or where the issues are generally important for those participating in a particular trade or market. There may also be issues which involve allegations of fraud or other commercially disreputable conduct against an individual or group which most probably could not be successfully mediated."

Other examples falling within this category are cases where a party wants the court to resolve a point of law which arises from time to time, and it is considered that abiding precedent would be useful; or cases where injunctive or other relief is essential to protect the position of a party. But in our view, most cases are not by their very nature unsuitable for ADR.

(b) The merits of the case. The fact that a party reasonably believes that he has a strong case is relevant to the question whether he has acted reasonably in refusing ADR. If the position were otherwise, there would be considerable scope for a claimant to use the threat of costs sanctions to extract a settlement from the defendant even where the claim is without merit. Courts should be particularly astute to this danger. Large organisations, especially public bodies, are vulnerable to pressure from claimants who, having weak cases, Invite mediation as a tactical ploy. They calculate that such a defendant may at least make a nuisance-value offer to buy off the cost of a mediation and the risk of being penalised in costs for refusing a mediation even if ultimately successful.

Some cases are clear-cut. A good example is where a party would have succeeded in an application for summary judgment pursuant to CPR 24.2, but for some reason he did not make such an application. Other cases are more border-line. In truly border-line cases, the fact that a party refused to agree to ADR because he thought that he would win should be given little or no weight by the court when considering whether the refusal to agree to ADR was reasonable. Border-line cases are likely to be suitable for ADR unless there are significant countervailing factors which tip the scales the other way. In Hurst, Lightman J said:

"The fact that a party believes that he has a watertight case again is no justification for refusing mediation. That is the frame of mind of so many litigants."

In our judgment, this statement should be qualified. The fact that a party unreasonably believes that his case is watertight is no justification for refusing mediation. But the fact that a party reasonably believes that he has a watertight case may well be sufficient justification for a refusal to mediate.

(c) Other settlement methods have been attempted. The fact that settlement offers have already been made, but rejected, is a relevant factor. It may show that one party is making efforts to settle, and that the other party has unrealistic views of the merits of the case. But it is also right to point out that mediation often succeeds where previous attempts to settle have failed. Although the fact that settlement offers have already been made is potentially relevant to the question whether a refusal to mediate is unreasonable, on analysis it is in truth no more than an aspect of factor (f).

(d) The costs of mediation would be disproportionately high. This is a factor of particular importance where, on a realistic assessment, the sums at stake in the litigation are comparatively small. A mediation can sometimes be at least as expensive as a day in court. The parties will often have legal representation before the mediator, and the mediator's fees will usually be borne equally by the parties regardless of the outcome (although the costs of a mediation may be the subject of a costs order by the court after a trial).Since the prospects of a successful mediation cannot be predicted with confidence (see further para 27 below), the possibility of the ultimately successful party being required to incur the costs of an abortive mediation is a relevant factor that may be taken into account in deciding whether the successful party acted unreasonably in refusing to agree to ADR.

(e) Delay. If mediation is suggested late in the day, acceptance of it may have the effect of delaying the trial of the action. This is a factor which it may be relevant to take into account in deciding whether a refusal to agree to ADR was unreasonable.

(f) Whether the mediation had a reasonable prospect of success. In Hurst, Lightman J said that he considered that the "critical factor" in that case was whether "objectively viewed" a mediation had any real prospect of success. He continued (p 381):

"If mediation can have no real prospect of success, a party may, with impunity, refuse to proceed to mediation on this ground. But refusal is a high risk course to take, for if the Court finds that there was a real prospect, the party refusing to proceed to mediation may, as I have said, be severely penalized. Further, the hurdle in the way of a party refusing to proceed to mediation on this ground is high, for in making this objective assessment of the prospects of mediation, the starting point must surely be the fact that the mediation process itself can and often does bring about a more sensible and more conciliatory attitude on the part of the parties than might otherwise be expected to prevail before the mediation, and may produce a recognition of the strengths and weaknesses by each party of his own case and of that of his opponent, and a willingness to accept the give and take essential to a successful mediation. What appears to be incapable of mediation before the mediation process begins often proves capable of satisfactory resolution later."

以上是英国法院判决的几个较为重要的调解判例。正如Burchell v Bullard & Ors一案中所说的，在诉前会议中对非诉讼争议解决提议不予理睬的人，不会得到同情，“can expect little sympathy if they blithely battle on regardless of the alternatives"。上述这些判例表明了英国法院对于用调解的方式解决争议的支持。但是，在实务当中，基于可能产生的额外费用或诉讼策略等方面的原因，或者是双方确实不愿意等，有些当事人或律师对于这种调解倾向并不太支持。而就争议解决的整个走向来看，判例本身的导向作用已经发挥效果，并且也契合整个社会多元化解决争议的趋势。

(脚注略）

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