CJC report recommends more use of compulsory mediation

The Civil Justice Council Working Group on ADR has decided against recommending compulsory mediation as a pre-condition of bringing or progressing all civil litigation. Instead, it proposes a more selective introduction of compulsion.

The Working Group was set up to build on proposals by Lord Briggs on mediation in the county courts and the proposed online court. It expressly set out to re-examine Lord Briggs’ decision not to introduce compulsory mediation in all cases. Some members were in favour, but the majority shared Lord Briggs’ view that it would be better to use compulsion selectively.

The report briefly outlines existing experience with ADR schemes in the UK as well as in some overseas jurisdictions. Unfortunately, much of the evidence is anecdotal, making it difficult for the Working Group to assess these schemes effectively. Interestingly, their overseas sources appear often to have been more negative than the experience of CMS colleagues in the same jurisdictions.

The report stops short of recommending blanket compulsory ADR in England and Wales. The reasons include concerns that:

• A new compulsory step may simply increase cost and inconvenience in cases which would settle anyway, while being needlessly confusing for unrepresented litigants;
• It is unclear which type of ADR should be required;
• Compliance may be difficult to assess;
• Negative feedback from some overseas jurisdictions should not be ignored.

Instead, the report recommends a more selective approach in which sanctions for an unreasonable failure to use ADR should be available at interim hearings rather than only at the end of a matter, and courts should be able to make ad hoc orders requiring ADR in appropriate cases. It raises the possibility of allowing any party to serve a “notice to mediate” on an opponent, with costs sanctions or the possibility of a court-ordered mediation if the receiving party does not then comply. This suggestion is based on a successful scheme in British Columbia.

The Working Group suggests that, in return for greater court support, practitioners should do more to address the concerns of stakeholders who remain reluctant to use ADR. This may imply that if practitioners rise to this challenge, the question of blanket compulsion could be revisited.

The report’s recommendations are open for consultation until 15 December 2017. For more information, a copy of the report, or for help responding to the consultation, please get in touch with the authors or your usual CMS contact.