CJC Final ADR Report: Planning for mandatory mediation

The Civil Justice Council’s Consultation on ADR is coming to a conclusion. The Final Report is about to be published having been considered at the full CJC Meeting last week (26 October 2018). We will of course need to await recommendations, the response of Judiciary and Ministry of Justice for the fine detail. Any changes to Civil Procedure Rules would need further consultation but an April commencement is not unrealistic. There is nevertheless a direction of travel that is evident and a number of questions that should be in mind when the report is published.

There is a growing demand for mediation, the main form of ADR in civil and commercial disputes. The CEDR Biennial Report published earlier this year estimates that there has been a 10% increase in mediation per annum since 2016 and within that figure a 20% pa increase in “scheme” mediations. Judicial support is clear. On launching the CJC Consultation the Master of the Rolls spoke about “how the potential for ADR can be maximised”. Jackson LJ recommended specific costs allowances for ADR within his recommendations for an Intermediate Track and the Online Court, now in its pilot phase, anticipates a mandatory “facilitation” stage prior to any adjudication.

It is also evident that there is now a judicial philosophy of managing cases to resolution rather than managing to trial.

Sir Thomas Etherington, Master of the Rolls

Thus with ADR and mediation growing there are a number of questions for civil litigators that can be addressed perhaps even independently of any changes recommended by the CJC.

Client information – the client is at heart of any litigation and particularly central to a mediation. In general litigation is an unfamiliar process and mediation more so. Yet if the latter is to become an increasingly important component of the process do your clients have information readily available to assist them to make an informed choice about their options? Can you provide access to the many useful websites that provide this information?

Mediation does of course take place more prevalently in some areas of dispute resolution than others. The likely outcome of the CJC Final Report is that the option will become more widely used in new areas or in lower value cases. Do lawyers in your practice presently handling those cases have the skills or experience to deal with mediation? Do they have peer support readily available? Have they discussed how their areas of work may differ (or not) from established areas where mediation is regularly used?

One of the Consultation questions within the interim report was whether costs orders relating to an “unreasonable failure to mediate” should be made after Trial, or, whether it was more appropriate that such orders be made much earlier in the case at Case Management Conferences. If this change did take place then parties to litigation will no longer be subject to a theoretical costs risk that can be negotiated away in settlement discussions but will have to deal with the substantive consequences at a far earlier stage. The settlement strategy will have to be defined and decided from the outset of the dispute. Will advisors be ready to do so? Will clients? Does the settlement strategy vary in consequence? Do you involve the mediator at an earlier stage? Can the mediator assist in advising both parties when a case is “resolution ready”?

If the upward trend in mediations is further accelerated there will be more mediations and the consequence could be that lead times for mediations will lengthen unless more mediators are used. Clients prefer earlier resolution and so their lawyers should be considering extending the mediators that they are using. What are the criteria to be adopted? How is that information shared? Do you have efficient feedback within your firm on “new” mediators? Are the skills of your existing preferred mediators transferable to the new areas or lower value areas mentioned above? If they are already busy and getting busier will they be available?

Another consideration that needs thought arises from the development of “scheme” mediations – often fixed price and tailored to a particular industry or sector: the commoditisation of mediation and a consequence of the development of mediation generally. Do your mediation processes complement such schemes? Do you work for a sector or industry that uses such mediation schemes? Or indeed would benefit from such schemes? Many schemes are pre-litigation: are you supporting your clients at this stage? Could you assist with the development of a scheme? Or consolidate with other similar sectors to ensure that there was the volume for such a scheme to be viable? After all, and as mentioned above, client’s want resolution not litigation and trial.

There are many questions to be considered but one last issue to mention to frame your reading of the Final Report. Mandatory mediation was discussed in the Interim Report though not supported by the majority of the CJC ADR Working Group. Compulsion to mediate or to advise on mediation is familiar in different areas (workplace and family law) and in different jurisdictions (Italy and Ireland). It may not be a recommendation in the Final Report but in time the Online Court will extend its jurisdiction beyond low value money claims and the Court of Appeal will review the Halsey guidelines. Perhaps you would be better prepared to advise clients when reading the CJC Report by posing to yourself the question: “What if mediation were mandatory?”