The Civil Justice Council (CJC) has called for a ‘notice to mediate’ system used in Canada to be considered as the first step towards a more “automatic” system of alternative dispute resolution (ADR).
The CJC, in its final report on ADR, said “there was virtually no support for blanket compulsion” in any of the submissions received since its interim report last October.
But its working group on ADR put forward a range of recommendations to improve the awareness, availability and encouragement of ADR.
It said: “We do not support the introduction of blanket compulsion in the sense of an administrative requirement that proof of ADR activity has to be provided as a precondition of any particular step.”
However, in looking for an “acceptable mechanism under which a mediation could be triggered without the intervention of the court”, the working group said the system in the Canadian province of British Columbia offered “the most promising way forward”.
It said the key to this “automatic” referral system was a very narrow group of permitted opt‐outs.
Once one party issued a notice to mediate – a formal invitation – the mediation would otherwise “kick into action” and a mediator would be appointed from a court-approved roster if the parties could not agree on their own mediator.
Though the court had a “residual supervisory role”, the CJC said “the indications we have from practitioners who use the system is that it has had the effect of making the court‐based mediation system culturally normal”, and there was “very little or no satellite dispute about the fitness or appropriateness of a given case to mediate”.
If the notice to mediate was introduced, the CJC said a “number of critical policy decisions would arise”.
These were whether there should be an ability to go back to the court if the notice was issued by “an unreasonable opponent who you believe will never settle”, whether there was in England and Wales a “product of guaranteed quality available as a default system” similar to the Canadian court-rostered mediators, and whether the sanctions for ignoring a notice to mediate should include striking out as well as costs.
In its other recommendations, the CJC said the Halsey guidelines for the imposition of costs sanctions following a refusal to mediate should be reviewed to narrow the circumstances in which a refusal was regarded as reasonable.
“The post‐mortem sanction under the Halsey system should be retained and applied more vigorously. The jurisprudence is ripe for review in light of apparent inconsistencies between recent Court of Appeal decisions.”
The CJC said that, “however difficult it may be”, there should be a “greater degree of court intervention during the case management process” as opposed to waiting until after judgment.
All court forms, pre-action protocols and guidance containing “significant prompts towards ADR” should be reviewed to ensure that there was “effectively a presumption” that ADR would be attempted in every case which was not settled and litigants were fully informed about ADR.
The CJC said online dispute resolution “in all its many forms must establish a set of standards in order to gain further acceptance” and the Civil Mediation Council should consider promoting “cheaper, less expensive models”, such as three-hour telephone mediations.
In the newly expanded personal injury jurisdiction of the small claims court, “judicial neutral evaluations” should be introduced, where the parties meet a judge and together reach a settlement in the absence of lawyers.
The CJC called on mediation bodies to consider collaborating over public legal education so there was a single “voice of mediation”, and for a new website to be set up, hosting information about all the different kinds of ADR and possibly called ‘Alternatives’.
The CJC recommended peer mediation in schools and colleges, ADR becoming an “essential part” of professional training at law schools, and disciplinary codes for all branches of the legal profession including a duty to ensure that clients understand “all the alternatives to litigation”.
Sir Terence Etherton, the Master of the Rolls and chair of the CJC, said work had already started on the creation of the judicial-ADR liaison committee recommended by the report.
The ADR working party was chaired by William Wood QC, a commercial mediator at Brick Court Chambers.
“These are not problems with single or simple answers,” he said. “We have done our best to set out what seem to us the most promising options for the future.”