Delivering the 36th F A Mann Lecture at Lincoln’s Inn, Dame Hazel outlined four key pressures behind the “vanishing trial phenomenon”: increased costs of litigation; private provider competition in the form of mediation and arbitration services; a judicial turn against adjudication; and the Government’s fiscal policy “with attendant anti-litigation rhetoric”.

Whilst acknowledging the potential advantages of mediating and arbitration in cases where both parties choose to do so, Dame Hazel warned: “These changes amount to a rule of law issues which concern the value of public adjudication, the loss of precedent in a common law system, and the unknown consequences of the unregulated processes and substantive outcomes of private dispute resolution.”

Bill Wood QC, Acting Chair of the Civil Mediation Council, responded that the vast majority of cases will settle and have always settled. “In many ways the role of mediation is getting those cases to settle early, before costs have got out of control. The law reports never seem to get any thinner as the years go by and it is hard to blame parties for saving themselves the quite extraordinary cost of civil litigation.

“Nobody is forced to mediate and nobody is forced to settle. In many ways that is the key to mediation’s success,” he added.