The Overriding Objective and ADR
In my blog of 3rd September (Court orders ADR without Party consent) I considered the Court of Appeal decision of Lomax v Lomax where the Court ordered a Judicial Early Neutral Evaluation. Although it has been anticipated that the Courts would look beyond costs penalties where there is an unreasonable failure to follow ADR options the case does mark a significant change by introducing an element of compulsion. This changes the tactical dynamics and parties to litigation will wish to consider afresh other ADR options.
It is pertinent to consider how arguments might be advanced for those options in the context of the importance of the CPR’s Overriding Objective. (Again see the previously cited blog for the comments of two Masters of the Rolls on this issue at the Bonavera Institute of Human Rights Conference this summer.)
The arguments overlap and will be more coherently presented by senior Advocates and I also beg leave to paraphrase and conflate some of the Rules.
- Ensuring the parties are on an equal footing: there is often a concern about inequality of resource and that will remain. However where parties are negotiating in good faith and the process allows the exploration of options where the parties can go beyond the powers available to a Court there is a levelling of the playing field. What is important to one party is often of less value to another and so a “concession” can be made as parties move towards settlement: in this context it is not always the “powerful” party who holds all of the valuable negotiating concessions.
- Saving expense – there is ample evidence that mediation saves money. The CEDR Audit of 2018 suggests that for every £1 invested in a mediator there is a saving of £100 in wasted management time, damaged relationships, lost productivity and legal fees.
- Complexity – merely because a case is difficult of complex is no bar to the matter being mediated. The flexibility of the process and development of facilitated ADR means that many complex cases can be mediated to a successful and earlier conclusion with the assistance of neutral intermediaries.
- An appropriate share of Court resources – this is perhaps amongst the most pertinent factors. The shortage of resources available to the Judiciary and the pressing needs of other areas of Justice mean that ADR will promote settlement and narrow issues where a case cannot be resolved. Increased and earlier settlements using ADR will release Court time for those cases that do need judicial time and resource.
There are other arguments and points to be made. The key issue to note is that Lomax is a marker and that there will be more cases where the Courts consider and support other types of ADR. In presenting (or indeed opposing) the issue, whether that is for mediation or other forms of ADR, the Overriding Objective will be a key argument for advocates to advance.