The Civil Justice Council fly the flag for mediation in their latest report

Hasan SadikAlternative Dispute Resolution (ADR), Mediation

An interim report about the use of ADR – and specifically mediation – has recently been published by the Civil Justice Council (CJC). The Council are looking to review the current use, and make recommendations for the future role of ADR in civil justice. In doing so they are further strengthening the case for mediation being the front runner of ADR.

The formation of an ADR working group

In January of last year the CJC formed a working group to review the ways in which ADR is positioned within the civil justice system in England and Wales. The group – which includes judges, mediators, solicitors and a professor of law, were called to action with the following points of reference in mind:

  • The MOJ Court Users Survey 2015 showed relatively low levels of awareness of ADR.
  • In other parts of the justice system (notably family disputes and employment disputes), different models are implemented to encourage the use of ADR.
  • As part of a review of the EU Mediation Directive, the European Parliament earlier commissioned a study and published “Re‐Booting the Mediation Directive: Assessing The Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU, 2014”. It was felt there were many useful experiences from other countries on how to encourage the use of ADR.

Lord Briggs’ Civil Court Structure Report

Of course, Lord Briggs’ Civil Court Structure Review was also a major factor in the review. ADR was not the only concern of his reports but certainly it was a significant one. The most poignant findings and recommendations in relation to the provision of ADR were:

  • There was a substantial proportion of claims of modest value where mediation was insufficiently used.
  • There was a substantial underuse of available resources, in that there was a good supply of qualified mediators available in England and Wales.
  • A perceived ADR gap in mid-value disputes between small claims (served by the Small Claims Mediation service) and higher value claims above £250,000, which could be improved through greater use of ODR.

He recommended that (amongst other things) the future of civil courts should include encouraging the use of ADR pre‐action; further increasing the use of online courts and extending this digitally with ODR (online dispute resolution); and reintroducing the County Court after‐hours mediation scheme to fill the gap left by the ending of the National Mediation Helpline.

Raising the profile of ADR and mediation

The CJC report gives a thorough and succinct current position of ADR in England and Wales. Perhaps most importantly, it states that there are still many civil disputes in which ADR techniques are not sufficiently used. Although it went on to say that statistical evidence for the current extent of mediation practice are hard to acquire, often due to the confidentiality that makes mediation successful. One reference point, CEDR (a not‐for‐profit organisation developing ADR policy and practice), reported around 10,000 commercial mediations per year, the value of which was not disclosed. There are an additional (approximate) 10,000 Small Claims Mediations that are run under the auspices of the County Court scheme.

The CJC have long expressed an ambition that ADR should become integral to the Civil Justice System but feel so far that has not happened. Specific attention was drawn to the fundamental failure of making ADR “familiar to the public and culturally normal”. Despite undoubted success, the use of ADR is still “extremely patchy”. More positively, the report said it was striking that even as recently as 15 years ago, a report on the structure of the civil courts may not have have even mentioned ADR.

One of the most crucial aspects of the report is in relation to Online Dispute Resolution (ODR) becoming increasingly available. Our recent post about the rising popularity of online mediation is seconded by the report stating that ODR is an opportunity to extend the benefits of ADR to disputes in which “physical distance, or time constraints or simple low value would make a traditional face to face mediation very difficult to achieve”.

How the CJC move forward

Although an interim report, the working group have published a lengthy and detailed document with many interesting and thought provoking points to explore. It concludes with a set of recommendations. All focussed on the challenges of promoting the use of ADR and mediation, these will form the next phase of the CJC consultation:

  • Making ADR culturally normal.
  • Encouraging ADR at source before legal proceedings are contemplated.
  • Encouraging or requiring ADR when proceedings are in contemplation.
  • Encouraging ADR during the course of the proceedings.
  • Costs sanctions. A proposal that Court reserves the right to sanction those who unreasonably fail or refuse to use ADR.
  • ADR and the middle bracket. The working group agreed with Lord Briggs that there is an ADR gap in mid‐value disputes where ADR is not being used sufficiently.
  • ADR benefitting low value cases. These are very much the cases at which the CCSR initiative is directed. How can a sustainable, good quality mediation service be provided?
  • Challenges for ODR. Does ODR have the enormous potential envisaged in terms of delivering ADR efficiently, at low cost and how will that be introduced?
  • Challenges for Mediation. Why are Judges and professionals still not entirely comfortable with mediation in terms of standards and consistency?

Embracing the digital age

Digitisation of legal proceedings is widely credited as being the overwhelmingly significant force for change in our legal system. The Online Solutions Court proposed by Lord Briggs, has ADR at its very core. In turn, mediation is establishing itself as the leader in ADR in England, Wales and internationally. The CJC actually state – in agreement with the view expressed by Lord Briggs – that mediation is “the dominant method of ADR”. Something we both support and endorse.

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