ADR and Civil Justice: The Civil Justice Council’s ADR Working Group Final Report

The CJC ADR Working Group published its much-anticipated Final Report on ADR last week.  This Report is the result of over two years’ work in reviewing the existing forms of encouragement for mediation (and other suitable forms of ADR) and to consider how further use of ADR (excluding arbitration) could be encouraged.  This report will hopefully form the basis of policy development going forwards and is an encouraging read for the mediation, and wider ADR, community.

The Report makes clear that there are 3 main challenges to address in order to make ADR a more integral part of the litigation and court landscape.  First of these is that awareness of ADR needs to increase, secondly that the availability of ADR both in terms of funding and logistics and quality needs to improve and thirdly, that the Government and Courts need to do more to encourage the use of ADR.

Taking these in turn, the Working Group makes some eminently sensible suggestions as to what the next steps should be to increase the use of ADR by litigants.

The Working Group concluded that increasing the awareness of ADR is the most important but most difficult challenge. I’d agree with this conclusion – without the knowledge of ADR then there is no hope that ADR will be used more frequently.  The Working Group suggests (section 2.4) that the promotion of ADR must be seen as part of the wider challenge of public legal education. This can be started at school level with peer mediation and then further encouraged through the education of lawyers, often the gatekeepers to the use of mediation, at law schools and through professional and disciplinary codes.  There is also another call to the mediation community to provide a single “voice of mediation”, to encourage its use through initiatives such as Mediation Awareness Week and to push for greater mention of ADR in broadcast and social media.  The Report also suggests that a new website (perhaps to be called “Alternatives”, a name that, perhaps, needs more thought) should be a central depot for information about ADR.  This latter proposal is much needed as the current information hosted on government websites is poor and confusing.  However, as ever, the question of how such a website should be produced and funded overshadows this proposal.

As for the availability of ADR, the Working Group makes a number of sensible suggestions.  These are based around the need to ensure that the resources are in place to provide ADR across the broad spectrum of disputes. There is a call to ensure that that judges are available for Judicial Early Neutral Evaluation, particularly at the fast track level.  There is also a suggestion that the approach used in family matters to settle money disputes (FDRs) could be used in low value cases.  There is a call to the Ministry of Justice to ensure that the small claims mediation scheme and the case officers under the online court system are properly resourced and trained.  And then a further call to the Civil Mediation Council (of which IPOS is a board member) to consider the accreditation of “cheaper more proportionate” forms of mediation such as 3-hour telephone mediations and to look carefully at emulating the regulatory approach of the Family Mediation Council.  This last suggestion might prove one of the most controversial of those made by the Working Group.  Of course, better and more effective regulation and accreditation is desirable to ensure that the standards of mediation are upheld however, the regulatory approach of the FMC has suffered some criticism for being expensive, time consuming and overly onerous and that, as a result, individuals are choosing not to become registered, thereby undermining the entire purpose of registration and accreditation.  It is clear that careful thought needs to be given by the CMC, as the standards regulator, to this issue.

The Working Group also tasks the Government with a number of suggestions as to how it, and the Courts, could further encourage the use of ADR.  These suggestions include recommendations that court documents, guidance and protocols, along with the rules surrounding the operation of the Consumer ADR and ODR Regulations are reviewed to ensure that the availability, and presumed use of ADR, is reinforced.  The Working Group suggests that the judiciary should do more to encourage ADR and that sanctions should be more readily enforced on those reluctant to engage with ADR.  This proposal is supported by the Working Group’s clear view that the Rules and the case law have, to date, been too generous to those who ignore ADR.  There is a call to review the Halsey guidelines.  On the other hand, the Working Group recognise that pressures on judicial time and resources mean that proactive encouragement of mediation may be overly ambitious and so they propose consideration of a mechanism that could be triggered without the intervention of the Court.  They suggest that the British Columbia Notice to Mediate is the most promising option. Under that scheme sanctions for ignoring a Notice to Mediation include striking out the defaulting party as well as costs orders. Is this, they ask, too severe a sanction?  To my mind, if the Court is to give ADR the teeth it requires then the answer has to be no.

This Report is a positive and promising step in encouraging the further embedding of ADR in the litigation system.  Indeed, two of the Working Group’s recommendations have already been put into motion – a Judicial ADR Liaison Group has been set up and the CMC has already set up the separate standards board and disciplinary committee referred to in paragraph 7.16. The Working Group’s conclusion that not enough has been done to encourage reluctant parties to the mediation table and that the Court has been too ready to accept poor reasons for not mediating - such as,  the complexity of the matter, that the parties have bad relations, or that there may be issues of law involved– is to be welcomed.  In my experience none of these reasons are a barrier to the successful settlement of disputes through mediation.