This initiative was launched on Tuesday 3 August and, despite its very bland title, it may well have the potential to reshape fundamentally how vastly differing types of non-criminal cases, claims and disputes are resolved in England and Wales.
The breadth of the initiative is illustrated (a) by it being co-sponsored by the all the Heads of the Courts and Tribunals divisions and by the Secretary of State for Justice and his Ministerial colleague in the Lords and (b) by this very clear aspiration set out in their joint foreword: “A quarter of a century after the Woolf report, litigation is still far from the last resort and too many cases still go through the court process unnecessarily. The provision of dispute resolution schemes remains patchy … more still needs to be done to increase uptake of less adversarial options.”
As would be expected of a “call for evidence”, it is the beginning of a process which will be shaped and informed by the responses received. After almost inevitably dropping the j word at this point – “this call for evidence is the first step on that journey” – several passages of fairly dense policy-speak then describe the aims and end goal of the initiative:
· “what have hitherto been regarded as ‘alternative’ methods of dispute resolution need to be mainstreamed within online processes, and within the culture of the legal system, those who work within it, and the consumers and businesses it serve …
· [and, post-Covid] we want to make the justice system better able to resolve disputes in smarter ways, combining pre-claim portals and court processes with integrated mediated resolution interventions …
· [and to] consider the changes necessary to move towards a holistic system of dispute resolution, one in which users are supported and directed towards the dispute resolution option that is right for their circumstances.”
Regardless of these being really very jargon-heavy phrases, they do set out a broad concept which is fairly readily understandable and which, at its height, could lead to radical reform and redesign of claims processes, advice and support services, associated technology platforms and even judicial interventions.
What the senior judiciary and Ministers are seeking via this call for evidence are views on experiences to date of what we broadly refer to as ADR and ideas and proposals about how those tools and possible new approaches could become close to the default setting for dealing with non-criminal legal issues. Below are the five headings on which input is sought during the fairly short consultation period which closes on 30 September:
1. Drivers of engagement and settlement
2. Quality and outcomes
3. Dispute resolution service providers
4. Financial and economic costs/benefits of dispute resolution systems
5. Technology infrastructure
This segmentation of the evidence sought and the very wide domains covered – civil disputes, family problems and tribunal matters – could perhaps signal a move away from the ‘access to justice’ mantra of the Woolf and Jackson reforms (which even with the very best of intentions had something of a feel of top-down design) to a rather broader key theme of ‘provision of dispute resolution services’ based on inputs from users, advisers and providers (and perhaps therefore more ‘bottom up’).
At face value, therefore, this call for evidence could be the start of identifying very different ways of dealing with non-criminal disputes. The ideas and themes in it have been filtering in to the debate about claims and disputes for a while and it seems fair to say that lockdowns and restrictions have accelerated the need to address them. As the document states: “the Covid-19 pandemic has put extra pressure on the courts and the wider justice system, and a consequential effect of more people being equipped to resolve their disputes without needing to wait for a court would be a significant reduction in the burden on the current system, delivering better outcomes for parties and society at large.”
How things move forward from here is not clear. That said, the joint approach by judges and Ministers and the short consultation period seem to indicate a collective will to provide the resources required to work fairly swiftly towards the goals that have been identified.
The evidence base collected as a result of this call for evidence will be a vital part of that work and we would very much encourage contributions to some or all of the issues raised. Please feel free to get in touch if we can help with any part of a response.