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ADR and Civil Justice
October 30, 2017
Mediation Awareness Week (MAW), in case you missed it, happened between 14th – 20th October. This was its second year and it included a range of events across a number of sectors listed here. For example the panel of speakers at the Medical Mediation Foundation event looked at the ethics as well as the practicalities of mediating extremely sensitive cases involving end of life care. The publication of the ADR and Civil Justice Interim Report on 17th October coincided with MAW.
The Interim Report deals with the thorny issue of whether or not to compel parties to use ADR. Section 8.3 sets out three versions of compulsion:-
- A requirement that the parties in all cases (or in all cases of a particular type or subject‐matter) engage in or attempt ADR as pre‐condition of access to the court, with the Claimant unable to issue proceedings until evidence of the appropriate efforts is produced (Type 1 compulsion).
- A requirement that the parties have in all cases (or all cases of a particular type or subject‐matter) engaged in or attempted ADR at some later stage such as the Case Management hearing (Type 2 compulsion).
- A power in the court to require unwilling parties in a particular case to engage in ADR on an ad hoc basis in the course of case management (Type 3 compulsion).
The different factors which impact on the types of compulsion are then listed. The Interim Report states on the one hand, ‘It pulls unwilling parties into an unfamiliar process such that not only does the mediation have a reduced chance of succeeding but the whole process of mediation could be brought into disrepute’ and on the other, ‘But those who practise as mediators feel strongly that unless a case is genuinely a pre‐selected test case or a claimant is obsessive and will not settle, mediation will be effective to settle the majority of cases’.
Having set out the perceived advantages and disadvantages, the Interim Report details its recommendations in Section 9, one of which is to make ADR ‘culturally normal’. The comparison with an online dating service/app is perhaps somewhat stretched: those who ultimately benefit from internet dating have chosen to embark on an adventure. The digitisation of legal proceedings does not necessarily imbue parties with an increased desire to choose ADR, however accessible it is made or attractive it sounds. Having said that, at the Mind the Gap! event held during MAW, mediators shared their views on how technology is being developed to meet the needs of those who cannot or choose not to litigate. Reference was made to the success of the online process in British Columbia, as well as to individual examples of where technology worked for the parties.
Written submissions on the questions posed in Section 10 of the Interim Report are invited with a deadline of Friday 15 December 2017. Submissions should be sent to civiljusticecouncil@judiciary.gsi.gov.uk
