“ADR is failing” says Civil Justice Council but compulsion is not yet the answer


Etherton: Maximise potential for ADR

The Woolf reforms have failed to embed alternative dispute resolution (ADR), a major report by the Civil Justice Council (CJC) said today, but it stopped short of calling for the introduction of compulsory ADR.

However, a minority of members on the expert working group behind the report did back compulsion, either as a condition of access to the courts or as a condition of progress beyond a case management hearing.

Instead the CJC said courts should promote the use of ADR more actively at the allocation and directions stage.

“We think that the threat of costs sanctions at the end of the day is helpful but that the court should be more interventionist at an earlier stage when the decisions about ADR are actually being taken.

“We think there should be a presumption that in most cases if parties have not been able to settle a case by the directions stage they should be required to bring forward proposals for engaging in some form of ADR.”

The interim report suggested that, if it was ever decided that compulsion was “appropriate”, clinical negligence should be top of the list.

“Those in favour of compulsion urge that there may be particular sectors in which ADR is so effective and so far preferable to litigation that there should at least be sector‐specific compulsion. Two candidates have been mentioned: boundary disputes and clinical negligence.”

On clinical negligence, the CJC said: “Claims are often for relatively modest sums, especially in cases where death has resulted. Yet even though claimants cannot claim for more than modest damages, they sue because they want non‐monetary extra‐legal outcomes, even though they actually cannot obtain them from a judge.

“Many mediations in such cases spend a substantial proportion of the time dealing with such matters, and the damages claim is a small part of the discussion and is often a modest amount.”

The report went on: “If there is one sector where a degree of compulsion to use mediation might be appropriate, perhaps on a pilot basis, it might be this.”

The CJC said boundary disputes illustrated that “a dispute over a small strip of land with tiny damages at stake can destroy the value of both adjacent properties, as well as generate seriously destructive animosity between neighbours”.

As a whole, the report was scathing about the failure of ADR to make the progress hoped for in the Woolf report, and described its successes were “extremely patchy”.

It said that, outside of family and employment law, despite measures introduced to encourage ADR such as “tick-box” requirements for clients to be advised or costs sanctions for unreasonable failure to mediate, the “system as a whole is not working” and ADR had not become “an integral part of the justice system”.

The CJC said the “most exciting area for change” lay in the opportunities provided by digital access to the courts for online dispute resolution (ODR) tools to be used.

“To some extent, with the online court and general digital access still under construction, our recommendations and views here are bound to be more speculative.

“We can see that if ODR techniques become woven into the design of the court system then the debate about whether or not to compel ADR may simply become obsolete.”

The CJC said it was less impressed by Italy, which had introduced a form of compulsory mediation with questionable results, than British Columbia, Canada, where parties could issue notices to their opponent in a specified form requiring mediation.

If the other party declined to attend, they could be ordered to or sanctioned by the court.

“Our enquiries suggest that the establishment of ‘notice to mediate’ procedure in the British Columbia civil justice system has led to the growth of informally agreed mediation as a norm, with the formal procedure itself only being invoked rarely.

“This is exactly the kind of outcome that the working group would welcome and would see as beneficial for civil justice in this jurisdiction.”

The CJC said it wanted to draw attention to the “fundamental problem” of the failure so far to make ADR “familiar to the public and culturally normal”.

It concluded: “Meeting this wider challenge will ultimately be more important than any tuning of the rules of civil procedure.”

The CJC is now seeking submissions on the findings and recommendations of the report, ahead of organising a seminar at which the proposals could be discussed and a final report prepared and submitted to the government for consideration.

CJC chairman Sir Terence Etherton, the Master of the Rolls, said: “ADR is a very effective means of resolving civil disputes quickly and cheaply… 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 working party was chaired by William Wood QC, a commercial mediator at Brick Court Chambers.

The other members were District Judge Lumb, based in Birmingham and specialising in the management of major personal injury litigation; Graham Ross, a mediator and specialist in ODR; Professor Neil Andrews, professor of Civil Justice and Private Law at Cambridge University; Tony Allen, a mediator specialising in clinical negligence and personal injury and Stephen Lawson, a partner specialising in contentious probate at FDR Law in Warrington.

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