David Watkinson looks at the Civil Justice Council’s report dated November 2018
Last December (2018) the Civil Justice Council published “ADR and Civil Justice” – the Final Report of its ADR Working Group. The 6 man (I mean that) group included 3 practising mediators, one being the Chair, and are all persons of distinction. The WG having been formed in January 2016 and publishing its interim report in October 2017, it is unlikely we shall see such a considered document on the way forward for mediation at least in the near to medium term future.
The report concludes with 24 recommendations. Only a broad brush can introduce four themes here.
First, the Group was not in favour of the courts ordering ADR/Mediation as a precondition for any further step in civil litigation. This was for a number of reasons, amongst them the wide variety of civil claims from possession to PI/clinical negligence (as opposed to Family cases, where a form of compulsory mediation already exists) and also that for the courts to have confidence in such a system, the training and conduct of mediators would have to be more tightly regulated and supervised than at present.
Secondly, the courts should be encouraged to require ADR/mediation to be considered by the parties at earlier stages than currently and the imposition of sanctions earlier than the conclusion of the case. To this end:-
– Court documents should ensure that all litigants are fully informed about alternatives to litigation and understand that there is a presumption in favour of ADR/mediation in any case which is not settled by themselves
– The criteria for the imposition of cost sanctions for the failure to mediate should be narrowed so that only for specified reasons showing commitment to ADR could refusal be justified. Reasons such as complexity/strong case would not be sufficient. Court time should allow for consideration of ADR issues
– The case law on costs sanctions for failure to agree to mediate is open to conflicting interpretation (I have blogged on this topic more than once before eg May 2018) and should be clarified.
Thirdly, public and professional awareness of the ADR/mediation option should be increased by (i) the use of broadcast and social media by the ADR community (ii) by a dedicated website to be established by government (iii) during university education and professional training and (iv) by inclusion in Codes of Conduct.
Fourthly, there were particular recommendations that the Civil Mediation Council (CMC) should promote cheaper mediation eg by telephone and emulate the Family Mediation Council’s regulation of mediators.
Of course, the CJC has no role in introducing legislation or even regulations. It advises the Lord Chancellor/Ministry of Justice. How far even these ideas travel depends essentially on response from that quarter. For a while, at least, there are other competing distractions. What this report does recognise, however, is the desirability of an increasing role for ADR in general and mediation in particular in our civil justice system.