The recently published final report of Lord Justice Briggs in his Civil Courts Structure Review includes some interesting conclusions as to the role currently played by ADR in the civil justice system in England and Wales and a number of recommendations aimed at expanding that role.
Key recommendations are for:
the proposed new Online Court to include an expanded range of conciliation options (beyond the short telephone mediation originally recommended); and
- the re-establishment of a court-based out of hours private mediation service in County Court hearing centres.
The review was commissioned by the Lord Chief Justice and the Master of the Rolls in July 2015 and is intimately linked with the wider ongoing reform programme being conducted by HMCTS (Her Majesty's Courts and Tribunals Service). Briggs LJ's interim report was published in January 2016, following which he consulted further on his provisional recommendations. The final report was published on 27 July 2016. While the role of ADR was not the primary focus of the review, Briggs LJ's observations and recommendations in this regard, summarised below, are important given the breadth of the consultation exercise involved and the stature of the review.
Boundaries between ADR and the civil courts
The report's consideration of ADR focuses primarily on the potential for pre-action ADR to resolve claims before they enter the court system. In this regard, Briggs LJ concludes that he had confined his review too closely in his interim report, in limiting it to considering whether some adaptation of the MIAM (the Mediation Information and Advice Meetings used in the Family Court) should be introduced more widely.
Following further research and consultation, the final report concludes that the extent to which mediation has reached a satisfactory steady state, as an alternative to determination of disputes in the civil courts, is "at best, patchy". The position is probably only satisfactory in cases of the highest value, with distinct shortcomings in the availability and use of pre-issue ADR for cases of low and modest value (up to say £250,000). Further, there is a particular shortfall for personal injury and clinical negligence claims – not necessarily simply attributable to the nature of those disputes.
The Small Claims Mediation Service is constrained by the number of mediators and logistical limitations on when a mediation must occur, resulting in only approximately 35-40% of parties who wish to use it being able to do so. By contrast, a form of small claims conciliation being provided by District Judges in certain County Court hearing centres has had a much higher success rate and is more expeditious.
Briggs LJ regards as 'less than satisfactory' the abandonment of the previous County Court-sponsored scheme involving out of hours short mediations at hearing centres, replaced by the National Mediation Helpline which was itself then abandoned (apparently for reasons of budgeting rather than performance).
- The Small Claims Mediation Service is constrained by the number of mediators and logistical limitations on when a mediation must occur, resulting in only approximately 35-40% of parties who wish to use it being able to do so. By contrast, a form of small claims conciliation being provided by District Judges in certain County Court hearing centres has had a much higher success rate and is more expeditious.
- Briggs LJ 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 system previously in place. Given that he has also recommended a substantial increase in the minimum claim value threshold for commencing claims in the High Court (initially to £250,000 and subsequently to £500,000), with a diversion of claims under those values to the County Court, such a mediation scheme could result in a substantial increase in the number of moderate value claims being mediated.
ADR within the Online Court
It is proposed that cases in the new Online Court (proposed for claims up to £25,000) would progress through three main stages: (i) a largely automated, inter-active online triage process to enable users to articulate their case and to identify documentary evidence; (ii) conciliation and case management by case officers; (iii) resolution by judges – either on the documents or by hearing (face-to-face or by video or telephone).
The interim report envisaged that the concilation in the second stage would be limited to short (1 hour) telephone mediations by the case officers, following the Small Claims model. However, in light of Briggs LJ's final conclusions as to the gaps in the provision of ADR, the final report concludes that this is too narrow and recommends that case officers (who it is proposed should be legally qualified and experienced) should identify and recommend to parties the conciliation method best suited to the case. This may include telephone mediation by the case officer (provided they have received mediation training) but may also involve face to face mediation (likely to involve referral to specialist private mediators), use of Online Dispute Resolution and judicial early neutral evaluation. Case officers would not be expected to provide face to face mediation or early neutral evaluation.
- Briggs LJ rejected suggestions that inclusion of the concilation stage might deter would-be users of the Online Court from pursuing pre-action ADR (as anecdotal evidence suggests is occurring with the Small Claims Mediation system, given that the mediation service is free). In Briggs LJ's view , the courts' sponsoring of 'culturally normal' conciliation (as an umbrella term) is an essential element of a new court designed for navigation by litigants without lawyers, given that many litigants know little about conciliation options unless lawyers provide that information. Further, the final report introduces additional stages into the Online Court process, which will include informing parties about possibilities for pre-action resolution.
For more detail on the new Online Court and wider issues addressed in Briggs LJ's final report, see our post here on our Litigation Notes blog.