The Civil Justice Council Working Group on ADR has published its final report on alternative dispute resolution (ADR) and civil justice, making a raft of recommendations including steps to raise public awareness of ADR, improving the availability of ADR and increasing court/government encouragement of ADR. This final report builds on the CJC’s interim report published in October 2017.
The report concludes that court rules and case law to date have been too generous to those who ignore ADR and underestimate the benefits of ADR. It recommends that there be an express presumption that ADR should be attempted at an appropriate stage and that there be a requirement in the claim document to explain the attempts taken to contact the other party and achieve settlement. The report also suggests that there are limited circumstances in which it will be acceptable for parties not to engage in ADR and that it should not be acceptable for a party to refuse to engage in ADR on the grounds that:
- The case is too complex;
- There is a bad relationship between the parties;
- There are issues of law involved;
- The cost of ADR is too high; or
- One party believes they have a strong case.
Circumstances in which it may be acceptable to opt out of ADR include:
- The parties have already engaged in some form of mediation or other ADR without success;
- The parties are already committed to an ADR process in the near future;
- The court is satisfied that there is a need to wait until after disclosure, but the parties will commit to undertaking ADR at that stage; or
- There has been unreasonable or obsessive conduct by one party.
Of particular interest are the recommendations made in the report in respect of the encouragement of ADR. Those recommendations include:
- Court forms, pre action protocols and guidance documents should be reviewed to ensure that there is a presumption that ADR will be attempted in any case that is not settled and that litigants are fully aware of the alternatives to litigation.
- The cost sanctions for failing to engage with ADR should be reviewed and the circumstances in which it is reasonable to refuse to mediate narrowed. The existing costs sanctions for failure to mediate should be retained and applied more vigorously. The report notes that this is an area ripe for review given inconsistencies in recent Court of Appeal judgments.
- The report notes that there is widespread agreement in favour of using cost sanctions to encourage the use of mediation and ADR generally.
- There should be a greater degree of court intervention during the case management process. At least in multi-track cases, the case management conference should be used to deal with directions, costs and ADR, and there should be a perception that ADR must be attempted before a trial will be permitted.
- The option for a mechanism that defaults parties into ADR, such as a Notice to Mediate which would be served by a party on an opponent, with cost sanctions or the possibility of a court-ordered mediation if the receiving party does not then comply, as utilised in British Columbia, should be considered.
Comment
Notwithstanding these strong recommendations in favour of ADR, the report falls short of recommending blanket compulsory mediation in England and Wales, noting that there was little or no support for such a measure and highlighting the difficulties in setting a specific stage in the proceedings at which mediation should take place on a mandatory basis. Further, it is noted that any requirement of compulsory ADR with cost penalties for failure to participate is likely to be a breach of Article 6 of the European Convention on Human Rights.
Nevertheless, should the measures recommended by the CJC be adopted, this will put a higher requirement on parties to actively engage in ADR at an early stage than under the present regime. For more information or a copy of the report, please get in touch with the authors or your usual CMS contact.
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