Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Next steps for ADR?

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In October 2017, the Civil Justice Council published an important consultation paper on the future of ADR.

The paper noted:

The stage has been reached where in various categories of dispute in England and Wales (notably family and employment) the parties are actually required to take steps directed solely to exploring settlement. Nobody in these systems is required to settle, but they are required to commit time and often money to exploring the possibility.
The Courts and rule makers in the non‐family civil justice system in England and Wales have been less forceful. The encouragement of ADR is currently achieved by:
(a) exhortations to try to  settle and to use ADR in Court forms and documents;
(b) links and signposts to sources of information about ADR
(c) tick‐box requirements that clients have, for example, been advised of the need to settle if possible and of the availability at ADR

(d) costs sanctions being imposed after judgment in the relatively rare cases in which one party can establish that his opponent has unreasonably refused or failed to mediate.
(e) the Courts’ acknowledgement that litigation lawyers are now under a professional obligation to advise their clients of the availability and advantages of ADR.
Almost all of these measures are well crafted and well thought out. But in our view the system as a whole is not working….
The Paper then goes on to ask whether the time has come for a different approach.
While noting that online dispute resolution may offer effective ways to resolve disputes, the Paper acknowledges that at present we simply do not know what that new system will look like.
Thus the basic proposition in the Paper is that:
the Court should promote the use of ADR more actively at and around the allocation and directions stage. We think that the threat of costs sanctions at the end of the day is helpful but that the court should be more interventionist at an earlier stage when the  decisions about ADR are actually being taken. We think there should be a presumption that in most cases if parties have not been able to settle a case by the directions stage they should be required to bring forward proposals for engaging in some form of ADR.
Some of us, a minority, would go further and introduce ADR either as a condition of access to the Court in the first place or later as a condition of progress beyond the Case Management Conference…
Overall we draw attention to the fundamental problem of the failure so far to make

ADR familiar to the public and culturally normal. Meeting this wider challenge will
ultimately be more important than any tuning of the rules of civil procedure.
I have long been a supporter of the use of ADR in civil proceedings. Indeed, many years ago I chaired a sub-committee of the Civil Justice Council that considered ways to promote the use of ADR. In welcoming the new paper I make the following suggestions:
1 To be successful, the judiciary must be supportive of the idea of promoting the use of ADR. If they are not supportive, then they will be less interventionist than the paper is suggesting they should be.
2 The judiciary need training in what ADR actually is and how it can be used as a dispute resolution tool. We ran an experimental workshop in which judges took part in role play exercises using ADR techniques. Having a ‘feel’ for the power of ADR in helping parties reach agreements should overcome judicial scepticism – if such still exists – about its value.
3 I think that consideration be given to rebranding Courts as Court and Dispute-Resolution Centre – which happens in some other countries. This sends the clear message that ADR is not something separate from the courts but integral to the Courts’ function.
4. It might be possible that a cadre of judiciary could train as ADR providers and undertake some mediations. (They could not of course hear cases that failed to settle.) But parties might be more willing to accept a process led by a judge rather than someone outside the Court structure.

The Consultation runs until mid-December 2017. The Interim Paper is at https://www.judiciary.gov.uk/wp-content/uploads/2017/10/interim-report-future-role-of-adr-in-civil-justice-20171017.pdf

 

 

 

 

 

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Written by lwtmp

October 19, 2017 at 3:05 pm

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