Courts to insist on Mediation

What is your ADR Strategy? Do you have an ADR Strategy? How would you respond to a “Notice to Mediate”? All of these questions are raised by the recommendations of the Civil Justice Council in its report on ADR and Civil Justice published just before Christmas. The Report has been accepted by the Master of the Rolls and the Spring quarter of 2019 will see the first step to a new ADR regime when the members of a Judicial ADR Liaison Committee are appointed.

In consequence settlement strategies will need to reviewed as this and other recommendations will compel parties to give earlier consideration to mediation, certify that clients are aware of ADR and narrow the instances where a failure to mediate is acceptable to the Courts. These changes, will result in mediation being used more often in civil disputes with adverse costs orders being used as the “incentive” to encourage mediation.

Whilst negotiation will undoubtedly remain the predominant means of resolution changes to Court Rules will require parties to consider mediation at an earlier stage in the dispute process; it should not be left to the point where everything else has been tried and a trial looming. An ADR strategy will be needed virtually from the point first instruction. The CJC report states that a simple informal discussion of possible settlement will not be regarded as an adequate attempt at ADR by the Courts. Thus with costs consequences the probable sanction it will be far better to be on the front foot rather than reacting to your opponent or the Court – even where it is likely that the traditional route of negotiations will achieve settlement.

There is considerable judicial support at the highest level for the reforms recommended. They may take some time to come fully to fruition but the first steps have been taken and others will follow with changes to Court Rules each October / April. It would be unsafe to assume that the changes will not affect the complex claim started today and lawyers should therefore have an ADR strategy in place from the outset to take advantage of the recommendations, to explore risk and explore the settlement opportunities that may be available for the client.

I am grateful to Temple Legal Protection for first publishing this blog on their website in March 2019.