Should mediation be compulsory for civil claims?

Posted on November 20, 2017 by Jeremy Frost

I read with interest the recent interim report from the Civil Justice Council working group on ADR (alternative dispute resolution) and Civil Justice, where they consider, amongst other matters, if ADR should be compulsory.

Report and consultation

You can read the full report here. There is a consultation on the interim report and written submissions should be submitted by Friday 15 December 2017 to civiljusticecouncil@judiciary.gsi.gov.uk.

The report covers a number of topics, including:

  • Making ADR culturally normal
  • Encouraging ADR at source before legal proceedings are contemplated
  • Encouraging or requiring ADR when proceedings are in contemplation
  • Encouraging ADR during the course of the proceedings
  • Costs sanctions
  • Low value cases/litigants without means
  • The online opportunity
  • A greater role for conciliation/ombudsmen during the currency of proceedings

And there is a large section which debates whether ADR, including mediation, should be made compulsory, although the report leaves the question open.

Why is ADR and mediation not more widespread?

It is clear that dispute resolution outside the courtroom is the direction of travel, but that the authorities are struggling to get their point across to the vast majority of the public.

For those closer to the process, the numbers willing to spend thousands of pounds being trained clearly shows an understanding of the benefits so what is missing? The massive opportunity that this new approach provides is at least not lost on them!

My first view of the report was that it resembled a business plan but without the financial objectives and marketing strategy. And I think this is the overriding problem.

Should it be compulsory?

The reports main outcome seems to be: with evidence that compulsory meditations settle in about as many instances as those where the process is voluntarily entered into, should the courts not be compelling parties to attend mediation sessions?

For what it’s worth, this seems a very limited objective. The bigger question to answer, which is also identified in the report, is how do we get the speed of this journey to increase? The suggestion is that compulsion might be the answer, but generally the question is left hanging like the proverbial rag doll in the wind.

More adventurous outcomes

If asked, I would look for the most adventurous of outcomes. Should we not be committing ourselves to halving the number of trials that are heard, or halving the length of time that disputes are open? Are these not better measures of success?

So how would I achieve this?

Simply put, we need to establish a market for mediation that is significantly more dynamic and broader than the present “barrister’s chambers” approach.

  • This might include the court paying an ADR specialist to look at all cases for an hour and allow them to determine whether it a slam dunk, and if it is, pass it straight the judge for an order
  • They might also approach the parties and offer ADR (for a fee if appropriate) or signpost those ADR services that already exist with less financially relevant claims
  • They might also provide some guidance to the claimant as to what is required to better explain their claim

However many webinars, infomercials and snazzy websites you put together, there will always be that minority who fill in the top, sign the bottom and issue it, expecting everyone else to work out what the problems are. It must be right that they be given a chance to explain the position, before the claim is kicked out, but should this really be at the instruction and explanation of the judge three or four months into the process?

ADR specialists working in a market environment will look at ways at reducing costs and generating profits, using trainees and less experienced staff to deal with those issues where a full ADR process is not required. Yes, checklists and regulation will follow, but at least the market will be directing development and allowing for innovation and expansion!

Lessons from the insolvency industry

This is almost exactly the path that the insolvency industry has taken over the past twenty years. Included within that process is a very simple claim agreement procedure for creditors in insolvency estates.

Most of the work is conducted by junior staff, leading to a claim determination by the liquidator. Most cases are simple, but in more complicated matters lawyers are instructed and negotiations take place.

In the end, though, the liquidator can make a decision and the creditor has a limited time to appeal. 

Now I am not saying that this could simply be “copied and pasted” into the court’s claim procedures manual, but with a small amount of development and a set of ethical guidelines, I am sure that most cases could be dealt with cost effectively and within the “autonomous, speedy and cheap” methodology that so many desire.

Brexit

And this leaves the elephant in the room: Brexit.

In general terms with smaller claims, the larger the disparity between the commercial size of the parties, the more difficult it is for sensible settlements to occur. And the biggest of all parties are the government departments who, in my experience, are the worst of all to deal with.

After all they have all the cards and are very prepared to use them when it suits, usually after bullying and prevarication have failed to allow them off the hook.

Wouldn’t a system designed to solve problems quickly and with the full engagement of government be a great selling point when selling the UK to the world after Brexit?

As I say above, the opportunity is massive; we are already at the forefront, but dare we grasp the nettle, or do we shrink back fold our arms and put the papers into the too difficult column? Unfortunately, this is well above my pay grade, but I would urge as many as possible to respond to the consultation.