Renouf Mediation

Renouf Mediation

Mandatory Mediation: the end of the litigator

After many judicial speeches on the topic the summer saw three significant publications. Firstly the Civil Justice Council reported, at the Request of the Master of the Rolls, supporting mandatory Dispute Resolution[1]. Secondly the Ministry of Justice published its own Guide to Civil Mediation[2] and thirdly and finally the Ministry requested evidence on Dispute Resolution[3]. That call for evidence is sponsored not only by the Master of the Rolls and the two Presidents of the Tribunals Divisions but also the Lord Chancellor and his Ministerial colleague in the House of Lords provide support from the Executive branch of Government.

Do not doubt that this is important and will lead to change. The question is not whether there will be a change but how much. The Introduction explains that the aim is to bring in to the mainstream “non-adversarial dispute resolution mechanisms, so that resolving disagreements, proactively and constructively becomes the norm.”

Does this mean the end of the litigator? Are the brave, brash front line soldiers of the law going to transform to accommodative Dispute Resolution Professionals? Rest Easy! Although the world is certainly changing and the judicial  focus reflects the client need for resolution the call for evidence asks how the courts should best implement that change. There will therefore be an opportunity to provide input in to the future of dispute resolution.

“There is nothing alternative about either mediation, ENE, or judge led resolution.”

Vos MR 29/3/21

The Call for Evidence raises 32 questions but it is clear that cost effectiveness and its close cousin proportionality lies at the heart of many of the issues. The costs of mediation will be relevant and will be judged against sums in dispute (and presumably where costs budgets are available the financial savings that might result from settlement.)

Other questions include what types of “DR” are most appropriate to resolve a particular case (and when): no doubt an issue that will take up more time at Case Management Conferences. Pre-Action Protocols will no doubt also to be reviewed and broadened. A legitimate question is which cases are not appropriate for DR? The judicial view seems to be that this could be a vanishingly small number – but “test cases” that set precedents will be one class. Are there others? How should they be defined?

Will we see a formal Notice to Mediate as there is in British Columbia? And “unless orders” where DR has been ordered? Should mediators be regulated? Will Courts expect civil mediators to be Civil Mediation Council Registered? Will your clients?

At this stage there are many questions and imponderables but parties even now will need their settlement strategies from outset. Be ready, know your options, know your mediator(s), have your answers ready for the cost benefit analysis. The Evidence paper states:

“We want to support people to get the most effective resolution without devoting more resources than necessary – financial, intellectual and emotional – to resolve their dispute. Creating more proportionate and constructive routes to resolution avoids the need for these resources to be expended, saving the user’s time, as well as reducing their levels of stress at an already difficult time.”

As a client satisfaction guide it is hard to fault this goal. If the Courts are designing such a process then it can be no bad objective for legal advisers to be ready to offer the same service to their clients.

The MoJ Call for Evidence closed on 31 October. We do not know when the MoJ will respond but the momentum behind alternatives to litigation is strong and changes seem very likely in 2022.  In planning for next year you should consider your settlement strategies because not only your clients but also the Courts will be asking how you will be resolving their dispute without devoting more financial, intellectual and emotional resources than necessary.

 

I am grateful to Temple Legal Protection who first published this article in their September editions of their newsletters Commercially Minded and Clinical Thinking.

 

[1] Civil Justice Council – Mandatory (alternative) dispute resolution

[2] Ministry of Justice –  A guide to civil mediation

[3] Ministry of Justice – Dispute Resolution: Call for Evidence

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