Alternative Dispute Resolution

We hear the Civil Justice Council (CJC) is about to implement Recommendation 1 of the ADR Review Working Group:

A  liaison  committee  should  meet  on  a  regular  basis  at  which  ADR professionals and Judges can Monitor and give advice on the role of ADR in the rapidly changing Civil Justice landscape.

It is not clear whether the Report’s use of the adjective “rapidly” refers to the current situation or the new landscape after the planned introduction of near compulsory ADR by the Civil Procedure Rule Committee (CPRC).

For sure things in the ADR world do not move “rapidly” at present.  Yet there are signs of growth.

Writing in Clerksroom Mediation’s inaugural “Mediation Bulletin” recently, David Carey draws attention to NHS Resolution’s Annual Report for 2016/17 which shows that only 121 claims for clinical negligence were resolved by way of trial and that 17,217 claims were resolved other than by trial.  Dr Carey’s article explores the extent to which the NHS Resolution Mediation Programme has contributed to settlement numbers.  He is disappointed to find, in response to his FOI request, that in the period 05.12.16 to 31.03.18 only 209 claims were mediated of which 80% or 163 were successfully mediated.  We believe that is all about to change on the new “rapidly” changing landscape.  In fact since March 2018 the number of mediations being undertaken in the Programme has increased and is set to increase still further.

Leaving to one side the objections of adjudication romantics such as Hazel Genn the tide seems to be flowing in the direction of mediation as the way to reduce cost and achieve earlier payment of compensation for the victims of clinical negligence.

The NHS Resolution scheme was praised by the CJC in the Final Report on ADR [1](the Report):

“The [NHS Resolution] scheme therefore goes some way to resolving the funding issue and ensures that a trusted, quality‐assured cohort of mediators is available.  The services are already proving successful”. (para. 5.7, p 25)

A closer reading of that Report reveals the direction of travel is toward near compulsory ADR similar to the requirements of the pre-action protocol for low value claims in road traffic accidents[2] which every year sees 400,000 claims using a settlement process known as the Claims Portal.  The Report recommends a much narrower set of opt-outs from ADR for those bringing civil claims.  An idea directly flowing from the Civil Mediation Council’s submission (para 8.24).

It is highly likely, we suggest, that this near compulsory approach will be introduced into the Civil Procedure Rules by the CPRC later this year.  In which case there will be a lot more mediation going on.

The Public Accounts Committee of the House of Commons (PAC) conducted an inquiry in 2017 into the rising costs of clinical negligence claims (a trend noted in Dr Carey’s article) and concluded:

“Recommendation: The Department, the Ministry of Justice, and NHS Resolution must take urgent and coordinated action to address the rising costs of clinical negligence. This includes:

……appraising further measures to reduce the legal costs of claims, for example whether mediation should be mandated for certain types of claims.”[3]

On 8 August 2018 the author attended a meeting at the Department of Health to explore issues related to the Department’s response to the PAC.  During a constructive meeting it became clear that one of the proposals under consideration was the expansion of the NHS Resolution mediation programme.

This is all good for mediation and mediators of course but is the infrastructure in place to support expansion?

One of the main concerns about greater roll-out of mediation is the availability of appropriately qualified mediators.  Tim Wallis of Trust Mediation has been working pro bono as a consultant in setting up the APIL, FOIL, and MASS register of appropriately experienced personal injury and clinical negligence mediators.  This could help meet the challenge around the supply of appropriately qualified mediators.

This initiative by itself will go some way to meeting the need identified by the CJC for the wider availability of both mediation and mediators.

The Civil Mediation Council (CMC) made a number of important submissions to the CJC’s ADR Review many of which were taken up by the CJC.  In particular the submissions that the grounds for opting out of engaging in ADR should be made much narrower so as to optimise the take up of ADR.  At paragraph 8.28 of the Report the Working Group made plain just how narrow those opt-outs should be:

“Although  we  do  not  agree  with  all  aspects  of  the  CMCs  “automatic” referral scheme we do agree with them that the opt‐outs under Halsey needs to be significantly narrowed.  We think that the acceptable opt‐outs could be broadly as follows:

(1)  The parties have already attempted mediation (or possibly JNE or some other form of ADR) without success.

(2)  The parties are already committed to an ADR process in the near‐term.

(3)  The parties (or a party) satisfy the Court of a need to wait (often until after disclosure) for any meaningful negotiations to take place, but they will commit to using ADR at that stage if the case has not otherwise settled.

(4)  There has been unreasonable or obsessive conduct by one or other party (of the Hurst v Leeming Variety).

(5) There is a genuine test case in which the court’s judgment on an issue of principle is required.”   

In light of these changes the CJC challenges the Civil Mediation Council to up its game thus:

“7.10. In terms of improving the logistical availability of mediation services at a proportionate cost we make the following recommendations: 

  • We think  the  CMC  could  promote  and  accredit  a  three‐hour telephone  mediation  process  to  fill  the  gap  in  provision  where physical  attendance  at  a  day  of  meetings  with  lawyers  is  always likely to be disproportionate.”  [This becomes Recommendation 16 at para 9.16]

Initiatives such as those described mean that if the incoming wave of mediation is not yet at the flood that wave can only swell.

[1] https://www.judiciary.uk/wp-content/uploads/2018/12/CJC-ADR-Report-FINAL-Dec-2018.pdf

[2] https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-claims-in-road-traffic-accidents-31-july-2013

[3] https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/397/39705.htm – recommendation 2


About Tony N Guise:

Tony Guise is Director of DisputesEfiling.com Limited which has built a Cloud based Platform for managing civil claims (the One Platform).  The Platform supports pre-action protocol activity with other online modules for arbitrations, mediations and neutral evaluations and costs disputes.

Until 2016 Tony practised as a solicitor specialising in commercial litigation and regulatory work.  During this time he held office as President of the London Solicitors Litigation Association from 2002-2004, Founding Chairman of the Commercial Litigation Association from 2006-2015 and sat on the Law Society of England and Wales’ Civil Justice Committee from 2009-2016.  Tony has been at the heart of every significant civil justice reform for the past 30 years.

Tony writes on issues relating to his civil justice reform work for the Law Society’s Gazette, the Chartered Institute of Arbitrators, New Law Journal and other leading journals.

The One Platform is Tony’s vision of effective IT for the civil justice system to which end he has worked in close collaboration with Lord Woolf, Sir Rupert Jackson, Sir Peter Cresswell, Lord Neuberger and Dame Elizabeth Gloster amongst others.


About Our Platform:

Our Platform brings immense benefits to the world of dispute resolution allowing users to access proceedings 24/7/365 from anywhere in the world, subject to network availability.

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