The new Dispute Resolution Commitment is the latest in a series of government moves to encourage the use of ADR mechanisms, including negotiation, mediation and neutral evaluation. The government’s consultation “Solving disputes in the County Courts: creating a simpler, quicker and more proportionate system”, asked for views on compulsory mediation information sessions, automatic referral to mediation, and extension of the provisions in the Mediation Directive to domestic disputes. Herbert Smith responded to the consultation on 29 June 2011.

Lord Justice Jackson has also provided a response to the consultation, as have the Lord Chief Justice and Master of the Rolls on behalf of the judiciary as a whole. These can be viewed here.Lord Justice Jackson’s response to the consultation includes the following points:

  • ADR should be encouraged, but Jackson LJ does not support compulsory mediation;
  • He supports the proposals for an accreditation scheme for mediators and the introduction of a mediation handbook;
  • In terms of higher value claims, an information pack about mediation should be sent to the parties in every case;
  • There should be improved training for judges and lawyers on mediation and steps taken to increase public awareness of the benefits of mediation; and
  • The Mediation Directive should not be extended to apply to domestic cases, as this would add a raft of unwelcome rules to no useful purpose.

The judiciary’s response to the consultation includes the following points:

  • The judiciary recognise the benefits of ADR, but caution that it is not suitable for resolving all civil disputes. They highlight the need for courts to remain in control of the progress of proceedings;
  • It is essential to have a proper, rigorous accreditation system for mediation;
  • They also support automatic referral to mediation for small claims. However, they do not support compulsory mediation;
  • There is little point in introducing compulsory mediation information sessions for cases with a value of up to £100,000; and
  • Extension of the requirements of the Mediation Directive to domestic cases would be unnecessary and disproportionate.

The Ministry of Justice plans to publish its response to the consultation by the end of October 2011, setting out the proposals it intends to take forward.