What does the ADR consumer want? A key question for the March CJC Workshop
On 6th March I am attending a workshop organised by the Civil Justice Council (“CJC”) which forms part of the Consultation on “ADR and Civil Justice” launched in October 2017. Various submissions have been made by academics, law firms, barristers, mediators, mediation and other member organisations prior to Christmas which will be considered at the workshop which is taking place in London.
Any CJC final recommendations will be considered by the MoJ at a time when a number of reports and reforms have been proposed by senior UK Judges that review ADR or design it in to the civil process. The CJC Consultation itself is a wide ranging review across UK civil jurisdictions of the successes (and failures) of ADR and includes a series of 29 Recommendations and 43 Questions. The report notes and considers the reasons for the “patchy” progress of ADR in the UK across different type of cases and across different civil jurisdictions.
It is impossible to do justice in this blog to a report which considers the present landscape of ADR provision and how it might be made to be used more frequently and effectively. The report notes that the breadth of ADR includes successful consumer conciliation schemes such as that of the Financial Ombudsman Service (“FOS”) which handled 1.6m enquiries in its last full year and investigated 341,000 new cases. Within that context other schemes are often small, as too is the more conventionally recognised process of mediation where CEDR estimates that 10,000 civil mediations take place per annum. Other areas of dispute resolution are also reviewed including those in the family courts where the limited success of Mediation Information and Assessment Meetings (“MIAM”) is noted and the greater success of the judicial Financial Dispute Resolution appointments (“FDR”) which requires parties to make settlement proposals prior to the FDR.
So where might we end up. It is surely worth noting in full the words of the Master of the Rolls, Sir Terence Etherington on launching the Consultation on the CJC website:
“ADR is a very effective means of resolving civil disputes quickly and cheaply. This report explores the current use of ADR and the reasons why it is not used more frequently. As we prepare to enter a digital age of dispute resolution it is an ideal time to look in detail at how the potential for ADR can be maximised.”
The Consultation itself asks whether Halsey v Milton Keynes NHS Trust should be reviewed. This case is now nearly 14 years old and there have been many changes to civil process in the intervening years together with those anticipated. It is understood that the senior judiciary recognise that this is the case and we must anticipate that, subject to a case being appealed on the point, there will be further and new judicial guidance in the nearer rather than the more distant future that will provide further impetus in favour of ADR.
Other recommendations pose questions as to whether costs sanctions for “unreasonable refusal” to mediate might be considered earlier in the process. At present costs penalties are imposed at the end of the court process in the relatively rare circumstances where a Judge has determined the issues. The Consultation suggests that an interim costs order could be made at sooner thereby compelling parties to consider ADR at a point where it might save costs rather than then having to argue the point at the conclusion of a well conducted hearing and carefully considered judgment and having to make submissions that the hearing itself could have been avoided. Having regard to the much greater emphasis on judicial case management and the fact that the settlement of disputes is seen as the objective for parties rather than (as was historically the case) the accidental by-product of the system it does seem likely that this recommendation will have resonance with those responding, the CJC and the Judiciary.
It should also be noted that there is a full chapter of the Consultation considering whether mediation should be compulsory. The conclusion is that it should not but it is plain that there are nuanced views amongst the members of the Working Group that authored the Consultation on what is a more complex issue than can be expressed in the two sentences of this paragraph.
There are a number of other recommendations that consider the process and some of the cultural challenges facing mediation. Clients will no doubt welcome any recommendations that reduce the cost of civil litigation whilst facilitating efficient settlement. The Consultation does also pose some challenging questions for UK mediators. Is there a concern amongst users of mediation about the quality and consistency of the “product”? Should there be more thorough regulation of civil mediators and how should such regulation be funded and managed?
The workshop on 6th March therefore has a host of issues to consider. As mentioned there have been numerous responses. For my part the key issue that should lie at the heart of the workshop and any recommendations is to determine what the clients want? The strength of mediation is that it empowers the parties to find their own solution to a problem. If ADR and mediation is to move from the “patchy” progress to become a broader and accepted means of resolving disputes there is no better place to start than with the consumer of ADR.