On 17 October 2017, the UK’s Civil Justice Council’s ADR Working Group issued an uncompromising 98-page interim report featuring the word “fail” 40 times, “failure” 21 times and “failed” nine times.
The report is mercifully less ominous than the foregoing might suggest, deftly pulling together the threads of patchwork of the UK's ADR coverage, and inviting responses by 15 December 2017.Working Group chair Bill Wood QC introduces the report saying, “ADR has failed to achieve the integral position in the civil justice system that was intended and expected for it at the time of Woolf. The CJC assembled this Working Group (including representatives of the Bench, the professions, the ADR community and an academic) to try to understand the reasons for failure and to suggest some possible solutions.
Its stated aim is to stimulate debate between stake-holders as to the nature of the problem and possible practical solutions, and in doing so wheelspins unhesitatingly into the no-go zone of mandatory mediation, all sirens blaring. A new sheriff in town? Perhaps.
The report isn’t final, nor is it intended to be comprehensive, but as a template for discussion, it asks some searching questions.
The report encompasses the broad sweep of civil litigation from sub-£10,000 consumer claims up to high-value (£150k-plus) commercial disputes. Mediators tend to sniff out demand, and it’s easy therefore to become blind to the cavernous gaps in availability of ADR.
A principal challenge, the report finds, “is to spread ADR into the disputes of middling to low value”. In that context, the report finds that ODR has a major role to play and, if successful, may obviate entirely the need for compulsion.
It illuminates the patchiness of uptake with reference to three main funders of civil litigation in the UK: insurers of personal injury litigation, NHSR (formerly the NHS Litigation Authority), and insurers of professional indemnity litigation.
The former do not on the whole engage with mediation, preferring instead “round table meetings” between lawyers and clients. NHSR, belatedly, following a recent pilot scheme which achieved settlement rates in the order of 80%, is setting up a permanent mediation scheme for all types of clinical and personal injury claims involving NHS hospitals. Professional indemnity insurers, by contrast, have been long-time users of mediation, and for them, mediation is arguably the dispute resolution process of choice.
The report does not shy away from the obvious questions posed: “Should personal injury insurers and their lawyers…be pressed more firmly to try out mediation at least in the heavier cases that occupy a good deal of case management time before the vast majority of them settle?” Concluding that “…in most other common law jurisdictions, the vast majority of personal injury cases are mediated. Is there are reason why this should not be so in England & Wales?”
Crossing the Rubicon
The report devotes six pages to the issue of compulsion, identifying three distinct methods: type one compulsion is defined as a requirement that parties in all cases engage in or attempt ADR as a pre-condition of access to the court with further proceedings barred until evidence of appropriate ADR efforts is produced. Type two compulsion is a requirement that the parties have in all cases engaged in or attempted ADR as some later stage, such as the Case Management hearing. Type three compulsion is defined as a power in the court to require unwilling parties to engage in ADR on an ad hoc basis in the course of case management.
The report outlines the pros and cons of each, with no single type commanding majority support on the working group. It does however, point out the existence of numerous ADR schemes (the RTA portal, ACAS conciliation, family MIAMs and FDRs, County Court judicial ENE) that are effectively or actually compulsory. It concludes that, “If compulsory ADR represents a constitutional Rubicon then it does seem to have been crossed a number of times already.”
Where the working group does achieve a consensus is in the belief that mediation faces challenges of “legitimacy and regulation”, noting that this “acts as a brake upon its further acceptance by the judiciary, the professions and very possibly the parties to litigation themselves.” Others, no doubt, will disagree.
Other challenges where the report is less specific in its recommendations include that of the “fundamental...failure…to make ADR familiar to the public and culturally normal”, which it notes will ultimately be more important than “any tuning of the rules of civil procedure.”
The report is probing, provocative in parts, and deserving of a resounding response. There are no magic solutions, as the report itself makes plain, but in its careful delineation of the battleground, the interim report offers the tantalising prospect of a considered and constructive overturning of past failures.
Written submissions on the report are invited by Friday 15 December 2017 to be submitted to firstname.lastname@example.org.