Author: Tom Bolam
As part of the increasing drive towards alternative means of dispute resolution (ADR), the Civil Justice Council’s ADR Working Group has published an interim report on the current and future role of various forms of ADR in civil disputes. So what is the CJC likely to recommend?
The essence of ADR is the deliberate creation of an opportunity for parties to explore calmly their real interests and to step back from the contentious atmosphere of the “battle” of litigation. It covers not just the well-known techniques of mediation and without prejudice discussions, but also less advertised methods such as expert determination or early neutral evaluation. These methods can be a quick and cost-effective method of achieving the resolution of a dispute. However, the CJC report suggests that, currently, the use of ADR has been “extremely patchy” and seeks to improve this.
Most practitioners agree that compulsory ADR would be going too far. In order to have a successful outcome, there must be a willingness on both sides to engage with a settlement process. One alternative is that there is a presumption of ADR, with the court requiring a written explanation where ADR has not been attempted. Further, whereas it is already the case that a party who unreasonably refuses to engage in mediation is at risk of an adverse costs order, presently any sanctions only take effect at the end of the case when costs liability is decided and costs are assessed – going forward, it may be that those costs sanctions will be introduced at an interim stage.
There is no formally constituted regulator for mediators or mediation providers, which leads to some inconsistency. A formal regulator (possibly the existing Civil Mediation Council, a not-for-profit organisation, or an offshoot of the SRA or Bar Council) is needed, which could require registered mediators to hold a recognised qualification or accreditation, and adhere to a code of conduct.
One interesting proposal put forward by the CJC is the use of ODR as an avenue through which established ADR approaches can be delivered efficiently and effectively, allowing ADR to take place in claims where, due to distance, time constraints or low value, traditional mediation is not appropriate. One possibility would be blind bidding, where parties submit blind bids into a system, and if the bids come within a predetermined range of each other, say 5% to 30%, then the technology automatically settles the dispute in the midpoint of the two offers. However, the CJC rightly feels that whereas ODR deserves further exploration, proper practical standards first need to be developed to govern areas like privacy, security, hosting, and methodology. It is therefore unlikely to come into widespread use anytime in the near future.
ADR is almost always a valuable exercise, and the costs involved are rarely wasted. Even absent settlement, it can narrow the issues in dispute, and bring the parties’ expectations closer together. Our experience is that most sophisticated commercial parties are now familiar with ADR – in particular mediation – and most higher-value disputes are mediated. The challenge for the CJC will be to encourage the use of ADR in smaller disputes, particularly where the costs of a traditional mediation may be disproportionate.
Civil Justice Council Interim Report on the future role of ADR in Civil Justice can be found here: https://www.judiciary.gov.uk/wp-content/uploads/2017/10/interim-report-future-role-of-adr-in-civil-justice-20171017.pdf
Tom Bolam, Senior Associate, Fladgate LLP (firstname.lastname@example.org)