The long march toward compulsory mediation

In my article “ADR: the time has come” published by the Law Society’s Gazette on 7 November 2019 I summed up the changing environment for civil litigation with these words:

“A restatement of the role and place of ADR in civil litigation within England and Wales is on its way and some of these changes may be introduced with the CPR amendments next April. The action in civil litigation is moving from trial to ADR. The time to prepare is now.”

The full article is here:

https://www.lawgazette.co.uk/practice-points/adr-the-time-has-come/5102074.article

The Court of Appeal decision about neutral evaluation (Lomax, August 2019) was a seminal moment. This was a decision concerning whether to order a neutral evaluation despite one of the parties objecting.  The relevant provision is in the Civil Procedure Rules, 1998 (as amended) at Part 3, rule 3.1(2)(m):

“(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.”

Elsewhere I have argued that it would not be long before mediation was made compulsory either by a Court decision adapting the reasoning in Lomax or by the Civil Procedure Rules Committee adding three words to the Civil Procedure Rules (my suggested amendment is shown by the words underlined in red coloured font):

“(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation and/or mediation with the aim of helping the parties settle the case.”

Now these chickens are coming home to roost.

In the recent decision of the Business and Property Courts sitting in Manchester Sir Geoffrey Vos, Chancellor of the High Court, made the link by suggesting the reasoning in Lomax had equal application to mediation.  The full decision in McParland & Anor v Whitehead is here:

https://www.bailii.org/ew/cases/EWHC/Ch/2020/298.html

This is a valuable decision for its extensive guidance about the Disclosure Pilot but also contains important expressions of judicial thinking about the direction of travel for litigators and ADR.  At paragraph 42 Sir Geoffrey says this:

“I mentioned that Lennox [sic, Lomax] inevitably raised the question of whether the court might also require parties to engage in mediation despite the decision in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR 3002. In the result, the parties fortunately agreed to a direction that a mediation is to take place in this case after disclosure as I have already indicated.”

At paragraph 58 this appears:

“Cooperation between legal advisers is imperative.”

Although concerned with the duties of parties in the Disclosure Pilot, and expressed in greater detail at paragraphs 53 and 54, it is plain that the adversarial system so long cherished by Common Lawyers is undergoing radical change, as foreshadowed in my Gazette article of last November.

Whilst some may favour introspection in times of change that would be, in my view, the wrong approach.  In jurisdictions across the world ADR is becoming compulsory (most recently in Greece) but also in the State of New York where “presumptive mediation” was introduced in 2019.  This means that in every civil case commence din the State of New York there will be mediation.  With programmes like this New York State is leading the world in ensuring ADR is in the mainstream of civil justice.  Can England and Wales match New York State’s imagination, energy and commitment to innovate?

Two issues confront the Judiciary in England and Wales as they move the civil justice system toward compulsory mediation.  The first is the need for more suitably trained and qualified mediators.  The second is the technological infrastructure to enable thousands of mediations to take place in a way which is secure and efficient.  This means using a Cloud based platform which is designed for the task of managing ADR.  Turkey introduced compulsory mediation for employment disputes some time ago and has been rolling this out to other types of claim.  Turkey’s mediations are managed online through a State funded portal.  New York State is looking to establish a similar portal.

In this jurisdiction NHS Resolution recently began to re-tender for its mediation providers.  At the heart of that Invitation to Tender is a new requirement to conduct mediations in a GDPR compliant environment.  We were proud to support NHS Resolution during 2019 in a pilot of the online management of mediation.

Will the Civil Procedure Rules Committee take the opportunity afforded by April’s round of amendments to introduce some of these ideas into the Civil Procedure Rules?

Tony Guise is director of DisputesEfiling.com, a provider of efiling platform for the collaborative management of ADR, and a past president of the London Solicitors Litigation Association