Posts Tagged ‘alternative dispute resolution’
Developing policy on Alternative Dispute Resolution
Many people acknowledge that if disputes can be resolved in ways that do not involve a hearing in court, this can be more effective and flexible than litigation. But use of alternative dispute resolution (ADR) has been constrained by the fact that, for it to take place, both parties need to accept that this would be the preferable way forward. There has been a reluctance to requires parties to use ADR.
In July 2021, the Civil Justice Council published an important report in which it argued that it would not be unlawful for the use of ADR to be made mandatory.
In August, 2021, the Ministry of Justice published a Call for Evidence seeking information about the use of ADR to resolve family, business and other civil disputes away from the courts. The paper makes clear that, in a post-Covid world, it is important to rethink some of the ways in which dispute resolution and how they should be changed to improve access to justice, reduce cost, and deliver fairer outcomes.
Experience from a number of other countries suggests that an element of compulsion in the use of ADR is important in achieving broader acceptance of the use of ADR.
It is unlikely that detailed policy initiatives will be announced for some time. But it seems to me that policy makers and the senior judiciary are working together to create a more postitive context within which ADR will become a central feature of the dispute resolution landscape.
The Civil Justice Council’s Report is at https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/.
The Ministry of Justice’s Call for Evidence is at https://www.gov.uk/government/news/views-sought-on-dispute-resolution-vision. Submissions are sought by the end of October 2021.
How to develop the use of Alternative Dispute Resolution – Civil Justice Council report
In December 2018, the Civil Justice Council (CJC) endorsed a report from a Working Group chaired by William Wood QC on how the use of ADR might be further encouraged.
The report concludes that it does not currently think that the use of ADR should be made compulsory – a conclusion that some will find disappointing. But the Working Party argues that there is still work to be done to prepare the ground for the possible introduction of compulsion at some future date.
There are three general matters which the Working Party argues should form the basis for a strategy for the development of ADR:
- The awareness of ADR, both in the general public and in the professions and on the Bench;
- The availability of ADR, both in terms of funding and logistics and in terms of quality and regulation of the professionals involved;
- The encouragement of ADR by the Government and Courts.
These are very similar to the issues which the ADR Sub-Committee of the CJC (which I used to chair) identified over 10 years ago.
But the latest report adopts a positive attitude arguing that
- Citizens must be aware that when civil disputes arise there are alternatives to the present choice of capitulation or litigation.
- Citizens must be aware that those alternatives include approaches involving neutral third parties to assist settlement.
- Those neutrals must be available in a practical and affordable form and operate in accordance with transparent standards of practice such that there is confidence in their training, their competence and their integrity.
- Far from being a sign of weakness the use of and the offer of the use of such techniques is wise, culturally normal and indeed would be expected by the Court.
- The Court should promote the use of ADR techniques to the extent that they would impose cost sanctions on those who did not agree to take reasonable steps toward settlement and reasonable steps towards the use of ADR. (The Parties would always be free to settle or not and the Court would never sanction a failure to do so.)
The Working Party says that increasing public awareness of ADR is the most difficult challenge. It concludes:
- The promotion of ADR must be seen as part of the wider challenge of public legal education;
- Initiatives such as peer mediation in schools and colleges and the annual Mediation Awareness Week should be applauded.
- There must be a more complete embrace of ADR in law faculties and professional training and disciplinary codes.
- There should be greater coordination between the different ADR areas, including restorative, family, civil, workplace and community, to provide a single “voice of mediation”.
- A new website (perhaps to be called “Alternatives”) should be created as a central online hub for information about ADR to include videos of the different types of ADR techniques being demonstrated;.
- The ADR community must continue to push, as we know it has tried to do for many years, for references to ADR into the broadcast media and into social media.
On availability of ADR:, the Working Party concludes:
- There is a need to ensure the availability of judges for Judicial Early Neutral Evaluation particularly at the fast track level. (We encourage the Financial Dispute Resolution approach – used in family disputes – in low value cases).
- The small claims mediation scheme should be fully resourced so that it can fulfil its potential.
- The Civil Mediation Council should consider the accreditation of cheaper more proportionate forms of mediation such as 3 hour telephone mediations.
- The CMC should look carefully at emulating the regulatory approach of the Family Mediation Council.
- The role of the case officer under the online court system is crucial as is the importance of appropriate recruitment and training.
- Steps should be taken to promote standards for Online Dispute Resolution as a necessary step towards its further promotion and acceptance.
As regards Court/Government encouragement of ADR, the Working Party concludes, among other things, that:
- There should be a review of the operation of the Consumer ADR and ODR Regulations to ensure that the existing rules are complied with and careful thought should be given to their further reinforcement;
- The Rules and the case law have to date been too generous to those who ignore ADR and in our unanimous view under‐estimate the potential benefits of ADR. The present ethos is most clearly embodied in the Halsey guidelines but its approach is embedded in the rules and the court machinery as a whole. These require review.
- Court documents, protocols, guidance material for litigants and case management should all express a presumption that ADR should be attempted at an appropriate stage on the route through to trial.
- The terms of the claim document (potentially also the Defence document) should include a requirement to certify attempts to contact the other party and achieve settlement.
- There should be earlier and more stringent encouragement of ADR in case management: there should be a perception that formal ADR must be attempted before a trial can be made available; we should explore the possibility of applying sanctions for unreasonable conduct that make sense at the interim stage.
The Working Party also states that it has been keen to identify an acceptable mechanism under which a mediation could be triggered without the intervention of the Court. It thinks the British Columbia Notice to Mediate procedure is the most promising option for a first step in this direction.
Where these proposals will go next are very hard to say.
It would be good to see the development of the proposed website. This might be achieveable pretty quickly and at modest cost.
It seems to me that the highly critical references to the Halsey decision – which have been a real drag on positive developments in practice – amount to a clear invitation for the issue to be revisited in the courts, assuming that a suitable case can be found.
When I chaired the ADR sub-Committee, a specific issue was what was the attitude of the judiciary to ADR, and whether or not it was right for them to participate in, for example, Early Neutral Evaluation. This is likely to need further work and training for judges to gain the confidence and experience to undertake this work.
The calls for public legal education sound fine – but can they be made effective without funding?
Notwithstanding these reservations, ADR remains an issue which remains important in the developement of civil justice practice and procedure.
The report can be accessed at https://www.judiciary.uk/announcements/new-report-on-alternative-dispute-resolution/
RESOLVING CONSUMER DISPUTES: Alternative Dispute Resolution and the Court System
Lawyers might think that a government research report with the above heading would/should have been published by the Ministry of Justice (MoJ). Would this not be a central theme in the Transforming the Justice System programme that is currently underway?
It may therefore come as a surprise that this is the title of a report commissioned and published by the Department for Business, Energy and Industrial Strategy (BEIS). In it consultants have looked at a number of contexts in which consumers may seek to obtain redress for problems they have with traders or other service providers.
The report seems to have been written with no account taken of the not inconsiderable body of work already done on the use of ADR in England and Wales (e.g. the reports by Professor Dame Hazel Genn). There is no reference to the court transformation programme. There is one reference to the Civil Justice Council (though not to its relatively recent paper on ADR). It is as though BEIS and MoJ are living in separate if not parallel universes, with no communication between them.
This may of course be deliberate. It is possible to imagine that BEIS – who have responsibility for promoting business and protecting consumers – have become fed up with the slow place of change in the use of ADR in the court system and want to charge ahead with their own initiatives.
What is interesting, however, is to see just how pervasive the use of ADR mechanisms are in the UK. The report sets out a list of 95 bodies who offer differing forms of ADR for the resolution of complaints and disputes. And there is an intriguing footnote citing more recent research, undertaken by Citizen’s Advice, which reveals that the total number of such schemes is approaching 150.
From the data they collected, the researchers suggest that ADR is quicker and cheaper than the courts; that those who use either the courts or ADR are in general, older, better off and better educated than consumers taken as a whole; and that these groups are in general better informed about the existence of different forms of ADR.
It is not the function of this report to argue that either use of ADR or use of the courts is to be the preferred method for resolving consumer disputes. But the researchers do, at the end, list a number of ‘indicators’ that could be used for ongoing monitoring of the use of ADR. This suggests to me that BEIS might hope to find over the years greater consumer awareness of and use of ADR schemes for the resolution of consumer disputes.
What the policy outcomes of this study will be are hard to discern from the present document. One may guess that, for modest-value disputes, use of different forms of ADR will steadily grow. What is surprising is the apparent lack of contact with others working on the reform of civil justice.
The report can be found at https://www.gov.uk/government/publications/resolving-consumer-disputes-alternative-dispute-resolution-and-the-court-system
(I am grateful to Walter Merricks, CBE, for drawing the existence of this report to my attention.)
Next steps for ADR?
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 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 makeADR familiar to the public and culturally normal. Meeting this wider challenge willultimately be more important than any tuning of the rules of civil procedure.
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
Review of the structure of the civil courts
The review of the structure of the civil courts, undertaken at great speed and efficiency by Lord Justice Briggs, was published on 27 July 2016.
Although commissioned by the Lord Chief Justice and the Master of the Rolls rather than by Government Ministers, there are strong reasons to believe that its recommendations will be taken forward by Government. The one uncertainty is how far the new Lord Chancellor and Secretary of Justice, Lynne Truss MP, will focus on an initiative originally supported by her predecessor, Michael Gove MP.
The recommendation that has grabbed most public attention so far relates to the recommendation for The Online Court.
This would be a new court, designed to be used by people with minimum assistance from lawyers, with its own set of user-friendly rules. It is anticipated that it will eventually become the compulsory forum for resolving cases within its jurisdiction. It should start by dealing with straightforward money claims valued at up to £25,000.
The review makes recommendations about how to help people who need assistance with online systems.
It is also provided that complex and important cases, even of low monetary value, should be able to be transferred upwards to higher courts.
Briggs also recommends important changes to who should be undertaking the work of the courts. Judicial resources should be made more readily available by the creation of Case Officers.
These would be a senior body of court lawyers and other officials who can assist with certain functions currently carried out by judges, such as paperwork and uncontentious matters. They would be trained and supervised by judges. Their decisions would be subject to reconsideration by judges on request by a party. They would operate independently of government when exercising their functions.
Thirdly Briggs deals with the thorny problem of the Enforcement of Judgments and Orders.
He recommends that there should be a single court as the default court for the enforcement of the judgments and orders of all the civil courts (including the new Online Court). This should be the County Court, but there would need to be a permeable membrane allowing appropriate enforcement issues to be transferred to the High Court, and special provision for the enforcement of arbitration awards, in accordance with current practice and procedure.
He wants to see all enforcement procedures being digitised, centralised and rationalised.
Fourth, Briggs is keen to promote Mediation/ADR.
This has been on the agenda for years. In this context he recommends the re-establishment of a court-based out of hours private mediation service in County Court hearing centres prepared to participate, along the lines of the service which existed prior to the establishment and then termination of the National Mediation Helpline. My view is that all county court hearing centres should be required to offer this; but Briggs clearly felt this was a step too far at this stage.
Future issues
Briggs also sets out a number of proposals for further restructuring of the civil courts. These include:
- a review of High Court divisions;
- a single portal for the issue of all civil proceedings, leading to the eventual abolition of District Registries;
- a review of whether procedural changes in the Court of Appeal should be applied to appeals to the High Court and to Circuit Judges in the County Court;
- the possible convergence of Employment tribunals and the Employment Appeal tribunal with the county court;
- he would like to see the Family Court being given a shared jurisdiction (with the Chancery Division and the County Court) for dealing with Inheritance Act disputes and disputes about the co-ownership of homes.
Announcements about the Government’s response to these recommendations and how they fit into the current programme of reform of the court estate will be noted here in due course.
Detail about the Briggs review can be found at https://www.judiciary.gov.uk/civil-courts-structure-review/civil-courts-structure-review-ccsr-final-report-published/civil-courts-structure-review-final-report-press-notice/
Alternative Dispute Resolution for Consumers – new developments
The Department for Business Innovation and Skills has just published an important policy paper relating to alternative dispute resolution for consumers. It summarises changes in the law which come into effect in July 2015.
The paper notes that common forms of ADR are:
- mediation, where an independent third party helps the disputing parties to come to a mutually acceptable outcome
- arbitration, where an independent third party considers the facts and takes a decision that’s often binding on one or both parties.
In the UK, there are already several large and well-established ADR schemes in regulated sectors. These include:
- financial services
- energy
- telecoms
Outside the regulated sectors, many businesses are already members of voluntary ADR schemes.
Alternative Dispute Regulations 2015
Two sets of regulations, in March and June 2015, have been laid in Parliament to implement the European Directive on alternative dispute resolution (ADR) in the UK.
In outline, the regulations:
- place an information requirement on businesses selling to consumers informing them of an ADR service they may be able to use in the event of a dispute that cannot be resolved in-house (this obligation does not come into effect until October 2015)
- establish competent authorities to certify ADR schemes
- set the standards that ADR scheme applicants must meet in order to achieve certification.
In the regulated sectors, the regulators will act as the competent authority. These include
- Ofgem
- Financial Conduct Authority (FCA)
- Civil Aviation Authority (CAA)
In all other areas the Secretary of State will be the generic competent authority. He has appointed the Chartered Trading Standards Institute (CTSI) to carry out these functions on his behalf. The CTSI website sets out the bodies it has already certified as ADR providers; the information will be updated regularly as the implementation date gets closer.
While the regulations do not make participation in ADR schemes mandatory for traders, the regulations do require almost all businesses which sell directly to consumers to point the consumer to a certified ADR scheme – where they cannot resolve a dispute in-house – and declare whether or not they intend to use that scheme. The Government clearly hopes that traders will see that offering their customers access to a free dispute resolution service, rather than going to court, will be an attractive additional service they can offer.
The Policy Paper also flags up developments in On-line Dispute Resolution where new law will be introduced in January 2016. This is designed to enable people who have bought goods or services online from other countries in Europe will have access to an on-line dispute resolution service (very much on the lines that e-Bay already offers).
It can be observed that these developments are being driven by the Department for Business not the Ministry of Justice – but they are clearly in line with MoJ policy relating to proportionate dispute resolution.
To read the policy paper, go to https://www.gov.uk/government/publications/alternative-dispute-resolution-for-consumers/alternative-dispute-resolution-for-consumers
To read about the Chartered Trading Standards Institute go to http://www.tradingstandards.uk/home.cfm
To see the list of certified ADR providers go to http://www.tradingstandards.uk/advice/AlternativeDisputeResolution.cfm
Reforming the Civil Justice system
There have recently been two reports making proposals for reform of the civil justice system.
In the first, published in February 2015, a committee of the Civil Justice Council, chaired by Professor Richard Susskind made proposals for the development of online dispute resolution (ODR)
In summary the report calls for radical change in the way that the court system of England and Wales handles low value civil claims. We strongly advocate the introduction of online dispute resolution (ODR). The committee argued, in outline:
- For low value claims, we are concerned that our current court system is too costly, too slow, and
too complex, especially for litigants in person. - To overcome these problems, our main recommendation is that HM Courts & Tribunals Service
should establish a new, Internet-based court service, known as HM Online Court (HMOC). - On HMOC, members of the Judiciary would decide cases on an online basis, interacting
electronically with parties. Earlier resolution of disputes on HMOC would also be achieved –
through the work of individuals we call ‘facilitators’. - We predict two major benefits would flow from HMOC – an increase in access to justice (a
more affordable and user-friendly service) and substantial savings in the cost of the court system. - ODR is not science fiction. We present a series of case studies from around the world that clearly
demonstrate its potential. - We argue that to improve access to justice, it is vital not just to have better methods of resolving
disputes but also to have effective ways of avoiding and containing disputes. ODR can help here. - The technology underpinning ODR is evolving rapidly. We make a series of predictions about
the likely capabilities of later generations of ODR system. - Our Group would be pleased to work closely with HMCTS in a new phase of work, that should
focus on piloting the proposals in this report.
Their report is available at https://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/
More recently JUSTICE has published an important report – Civil Justice in an Age of Austerity. A Committee, chaired by retired Court of Appeal Judge Sir Stanley Burnton, argues that the age of austerity should also be seen as ‘an age of opportunity’ to change the way the civil justice system operates.
It supports the proposals for ODR made by the Civil Justice Group (above) but goes further proposing that the courts take more responsibility for ‘triaging’ cases – with court officials playing a more proactive role in helping parties to disputes to resolve their problems themselves, leaving judges to deal with the most complex cases. It also argues for better information about legal rights and obligations.
The JUSTICE report is available at http://justice.org.uk/delivering-justice-in-an-age-of-austerity-report-launch/
Given the General Election, it will be some time before policy initiatives – if any – emerge from Government. But they show that there are influential figures in the legal system anxious to promote greater efficiency and a clearer user focus on the work of the courts.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 