The Civil Justice Council will not be short of reading matter over the Christmas break as it will be poring over the various responses to its Alternative Dispute Resolution (ADR) Consultation. We spoke about why this was important in the context of other civil reforms in our Blog “Maximising ADR – a one way street?” on 2 November and now take the opportunity to look at some of the questions raised and the issues that are under consideration.
Before we do so it is important to remember that this is not just about ADR: it is about settlement. We describe ourselves as litigators but we settle the overwhelming majority of cases without a final adjudication by a judge: we are, whether claimant, defendant, insurer or lawyer, “settlers”. And those settlements are achieved in a variety of ways. Many by the traditional negotiation of offer and acceptance and a smaller number by those various other means that include the different processes described by the collective as ADR. It is therefore important, as we have made clear in our submissions to the CJC that in tweaking or adjusting one component of the settlement process we do not detrimentally affect another part. We have explained that the balance to be struck is to ensure that traditional methods do not become culturally abnormal with mediation as the default thereby causing delay and adding to the costs and complexity of resolving claims.
The acid test for the CJC must be about the efficiency of settlement. Are any recommendations likely to lead to an earlier settlement? Will they save legal fees? Can they free up court resources by resolving cases that would otherwise have gone to a hearing? And will any recommendations remain fit for purpose as digitisation, artificial intelligence and online dispute resolution (ODR) offer alternatives?
There are many challenges for the CJC. Fortunately its Working Group contains many experienced mediators who will be very familiar with the exploration phase of the process. The BLM response recommended flexibility within a broad support for ADR generally. We rejected compulsory mediation in every case but acknowledged that the courts should have a discretionary power to order a mediation and also powers that might be exercised earlier where a party is unreasonably refusing to mediate.
Our feedback supports Judicial Early Neutral Evaluation (or JENE – best to get used to the ADR acronyms!) and ODR. We support a Court of Appeal review of the principles set out in Halsey, the leading case on the appropriate parameters for court intervention to persuade parties to mediate, because that judgment is now 14 years old.
We acknowledge that we may not know all of the answers. We have a view that is based on our experience and it does resonate with many of the clients with whom we have discussed the Consultation. The Court Service, other lawyers, their clients, judges and mediators will have their own perspectives which may differ depending on the type of work they are engaged with. There are other issues and nuances of the consultation that we will discuss in other blogs but the key takeaway at this stage is for readers to engage with the CJC because we settle far more often than we litigate.
(BLM’s Response to the CJC is available on request)
Written by Terry Renouf, consultant at BLM