The Civil Justice Council’s ADR working group has released its final report on ADR and Civil Justice, following consultation on its interim report released last year. The broad mandate of the review was “to maintain the search for the right relationship between civil justice and ADR” and to promote debate over possible reforms.
The report includes various recommendations aimed at improving the awareness of ADR (both in the general public and in the professions/judiciary) and the availability of ADR (both in terms of funding/logistics and regulation of the professionals involved).
However the recommendations likely to be of most interest to users of the civil justice system in the short term are those that relate to Court/Government encouragement of ADR. In this regard:
- The report does not support blanket compulsion of ADR in the sense of requiring proof of ADR activity as an administrative precondition to any particular step in the litigation.
- It also rejects the introduction of mandatory Mediation Information and Advice Meetings (as used in the family courts) as a precondition to pursuing civil claims.
However, the working group recommends a number of steps to give more weight to the existing “nudges and encouragements” toward ADR within the court system, with the aim of “spring‐loading .. the system in favour of the use of ADR at an appropriate stage”. In particular:
- The court machinery, rules and case law have been too generous to those who ignore ADR and should be reviewed. In particular, the Halsey guidelines should be reviewed to narrow the circumstances in which a refusal to mediate is regarded as reasonable.
- Court documents, protocols, guidance material for litigants and case management should all express a presumption that ADR should be attempted at an appropriate stage on the route through to trial. Encouragement of ADR should be both earlier and more stringent and there “should be a perception” that formal ADR must be attempted before a trial can be made available.
- The terms of the claim document (and possibly the defence) should include a requirement to certify attempts “to contact the other party and achieve settlement” (although we note that the latter requirement, as detailed later in the report, is limited to certifying awareness of the availability of alternative methods and that litigation should be a last resort).
- There should be further exploration of the interim report’s suggestion of allowing judges to apply sanctions for unreasonable conduct regarding ADR not only at the conclusion of the case (as currently) but at interim stages. Click here for an article by Jan O’Neill, Professional Support Lawyer, raising a number of concerns as to how such “midstream” costs sanctions would work in practice, particularly given that a party may not be able to fully justify its position on the issue without undermining privilege and without prejudice protections. The final report appears to seek to address such concerns by clarifying that the midstream costs sanctions could be made ‘provisional’ but it is still questionable whether it is appropriate that a party whose stance is in fact fully justifiable (by reference to privileged/wp evidence) should have the uphill task of later persuading a trial judge effectively to reverse an earlier finding of a different judge.
- There should be further consideration some mechanism under which mediation could be triggered without the intervention of the Court – with the most promising model being the ‘Notice to Mediate‘ used in the British Columbia system.
The report also recommends the establishment of a forum for continuing liaison between Judges, ADR professionals and other stakeholders to progress ADR’s contribution and its place within a rapidly changing civil justice world.