How to encourage mediation without compulsion 

Barristers are increasingly training as mediators and attending mediations on behalf of clients as advocates. Many clients are requesting barrister mediators, as they are perceived to be more knowledgeable about legal principles and authoritative. So there are a lot of opportunities for barristers to train as mediators and now the recommendations of the Civil Justice Council ADR working group are likely to result in increased mediation in the Court system.

Many people would agree that the provision of mediation and ADR in the Court system is patchy to say the least and that in most cases it can result in settlement and costs savings, or at the very least narrow the issues between the parties. It also seems to work best when carried out as early as possible, before costs have escalated. Costs can form a barrier to settlement.

The main stick that judges use to beat litigants with if they refuse ADR is the risk of a costs sanction at the end of the case. This is not very effective in encouraging more use of mediation. It is simply too late to consider this issue following the conclusion of the trial and judges are often not interested or don’t have time to consider the applicability of the Halsey principles and to apportion blame for failing to mediate.

Over a year after issuing its initial report on ADR, the CJC published its final report in November 2018. The aim of the CJC’s review was “to maintain the search for the right relationship between civil justice and ADR” and to promote debate over possible reforms.The terms of reference were:

* To review existing forms of encouragement for mediation (and other suitable forms of ADR) in civil cases in the Civil Procedure Rules, case law and the powers of the court.

* To consider alternative approaches to encourage the use of mediation (and other suitable forms of ADR) in civil disputes, including practices in other jurisdictions.

* To assess proposals for reforms to the rules or for initiatives that might be taken outside the formal rules.

* To monitor and contribute to the forthcoming review of the EU Mediation Directive.

In relation to this latter point a lot of encouragement of ADR has come from the EU and it remains to be seen what will happen after 29 March to the EU Mediation Directive and ADR Regulations which have been incorporated into UK law.

This report followed on independently from Lord Briggs’s final report and review of the structure of the civil courts published in July 2016. Lord Briggs proposed the creation of an “Online Solutions Court” covering most claims (except personal injury) whereby when filing a claim the parties would be informed about other options and then once information has been exchanged online, a legally qualified Case Officer will try conciliation or mediation. There will be only limited legal costs recoverable, if any, and so legal representation will be the exception rather than the rule. The idea is that the Court will be easy to use and so will be designed to be “lawyerless” with simplified user friendly rules.  This recommendation is being implemented through the Court Reform programme. In respect of low value personal injuries claims, the CIvil Liability Act has been enacted and the MOJ is setting up a new system to replace the Portal for use by litigants in person.

For other cases falling outside the new Court’s jurisdiction, Lord Briggs’ recommendation was to reinstate the national mediation helpline and to create an out of hours court based mediation service. Despite the overall objective of taking the “A” out of “ADR”, the national mediation helpline and out of hours court based service has not been introduced. What has happened is that a mediation pilot started in October 2017, in London Exeter and Manchester.

The pilot (which we run in Manchester) provides mediation at a fixed rate for claims going through the CIvil Court at up to a value of £250,000 and excluding personal injury claims. It is not an “out of hours” scheme but mediations take place at the Manchester CIvil Justice Centre in the Court conference rooms. The idea is that if successful the pilot will be rolled out nationally and be incorporated into the Online Solutions Court. The parties are not forced to mediate or use the pilot, but the judges make an order at allocation stage proposing mediation and drawing the parties’ attention to the pilot scheme should they wish to use it.

The CJC 2018 report includes various recommendations aimed at improving the awareness of ADR (both in the general public and in the professions/judiciary) and the availability of ADR (both in terms of funding/logistics and regulation of the professionals involved).

The key recommendations relate to Court/Government encouragement of ADR.

The report does not recommend compulsory ADR and rejects the introduction of mandatory Mediation Information and Advice Meetings (as used in the family courts) as a precondition to pursuing civil claims.

However, the working group recommends a number of steps to give more weight to the existing “nudges and encouragements” toward ADR within the court system, with the aim of “spring‐loading .. the system in favour of the use of ADR at an appropriate stage”.  In particular:

 

  1. The court rules and case law have been too kind to those who refuse to mediate and should be reviewed. In particular, the Halsey guidelines need to be reviewed to reduce the number of circumstances in which a refusal to mediate is regarded as reasonable.

 

  1. Court documents, protocols, guidance material for litigants and case management should all express a presumption that ADR should be attempted at an appropriate stage in the case.

 

  1. ADR should be encouraged at an earlier stage and there “should be a perception” that formal ADR must be attempted before a trial can be listed.

 

  1. The terms of the claim document (and possibly the defence) should include a requirement to certify attempts “to contact the other party and achieve settlement” (although this requirement, as detailed later in the report, is limited to certifying awareness of the availability of alternative methods and that litigation should be a last resort). This is in line with the ADR Regulations 2015 which impose a requirement on traders to signpost consumers to ADR, but do not require traders to use ADR.

 

  1. There should be further exploration of the interim report’s suggestion of allowing judges to apply sanctions for unreasonable conduct regarding ADR not only at the conclusion of the case (as currently) but at interim stages. A number of concerns have been raised as to how interim costs sanctions would work in practice, particularly given that a party may not be able to justify its position without undermining privilege and without prejudice protections. The final report appears to seek to address such concerns by clarifying that the interim costs sanctions could be made ‘provisional’ but it is still questionable whether it is appropriate that a party whose stance is in fact justifiable (by reference to privileged/without prejudice evidence) should have the burden of persuading a trial judge to reverse an earlier ruling.

 

  1. There should be further consideration of a mechanism under which mediation could be triggered without the intervention of the Court, following the ‘Notice to Mediate‘ model used in the British Columbia system. This would potentially increase the use of mediation as parties would be able to serve a notice which would result in the Court appointing a mediator from a panel list, perhaps similar to the Mediation Pilot. This would also mean that there would be more opportunities for new mediators as currently lawyers tend to appoint their favourite mediator, resulting in a lack of diversity in the mediator profession.

 

  1. The report also recommends the establishment of a forum for continuing liaison between Judges, ADR professionals and other stakeholders to implement the changes. That committee is currently being set up with representatives of the judiciary, the Bar and the Law Society being appointed.

 

So although compulsion is rejected by the CJC, these proposals would make it more difficult for parties to opt out If the report’s recommendations are implemented, there is likely to be an increase in mediation and ADR generally, which Barristers will want to know about and to be involved with, either advising parties or training as mediators.  One thing is certain, mediation and ADR is on the up and barristers are well advised to hone their mediation and negotiation skills to prepare for the brave new world of dispute resolution which will be less focused on trial advocacy and more on mediation advocacy.

 

Peter Causton Barrister

ProMediate (UK) Limited

CMC Mediation Training Provider

CMC Registered Mediations Provider

Regulated by the Bar Standards Board

+44 020 7822 8822

pc@whitestonechambers.com

www.whitestonechambers.com

Whitestone Chambers

 

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