A recent edition of the Law Society Gazette [1] reports that a Working Group of the Civil Justice Council (CJC) has produced an interim report [2] in which it concludes that measures to promote Alternative Dispute Resolution (ADR) are not working and should be extended further “to include an element of compulsion”. A consultation has been launched. The closing date for responses is 15th December 2017.[3]

Regrettably as the Gazette correctly identifies, this 98 page report stops short of recommending that ADR should be a mandatory condition of being able to issue court proceedings. It also accepts that ADR has yet to become an “integral” part of the civil justice system.

However, this report does make it clear that the Working Group wants the courts to promote ADR more actively. It agrees that the threat of cost sanctions at the end of a case is helpful, “but that the court should be more interventionist at an earlier stage when the decisions about ADR are actually being taken”. Following on from this the report recommends that “there should be a presumption that, in most cases, if the parties have not been able to settle a case by the directions stage they should be required to bring forward proposals for engaging in some form of ADR”.

In the context of a UK legal system which in many respects only pays lip service to mediation and other forms of ADR, these strong words are welcome. Although an advisory body, the CJC has responsibility for overseeing and coordinating the modernisation of the civil justice system and is influential. It includes in its ranks a number of very eminent lawyers and commentators, and its views do carry some weight.

Cynics in the mediation community may feel that they have been here before and that although the CJC’s sentiments are very welcome, there is no “guarantee” that anything significant will happen in the foreseeable future. Ultimate decision-making lies with HM Government, which over many has singularly failed to grasp the “ADR mettle”.

Equally there is far too much judicial and legal intractability. At the very least, the lower court judges who deal with most civil cases in the England and Wales jurisdiction should all be aware of ADR. All too often one encounters situations where the very best that can be said is that it is given very cursory consideration by members of the judiciary. Many English and Welsh lawyers quite openly admit that they see mediation, and by implication the interests of the public at-large, as a threat to their livelihoods.

Will these “strong words” be enough to carry the day and does this interim CJC report go far enough? It necessarily assumes that in many instances, court proceedings will be commenced and that the suitability of mediation will be considered at a later point when directions are given for progressing individual cases to trial. In some instances there may be no real alternative to starting court proceedings but the legal process is a very slow beast and even the process of simply issuing court proceedings can take months, even years.

Mediation and other forms of ADR tend to be most effective where they are used early on. Surely the emphasis should be on those in dispute using ADR at the earliest possible point, with or without lawyers’ involvement i.e. before Court proceedings are issued.

By that stage in all too many instances, views are already very entrenched. In practice ordinary people find themselves caught up in a very adversarial, often combative system. Even though many of those involved in individual cases may be concerned about spiralling legal costs, one court proceedings have started they often find it difficult to change their mindsets. All the more so as in some instances their viewpoints will be strongly influenced by lawyers who unconsciously or otherwise will have their eyes on their costs figures. Settlements reached in this environment may be efficacious but given that most will be driven by fiscal considerations they may not be fair settlements.

One trusts that in the wake of the above mentioned consultation, the CJC will revaluate and make some rather more radical recommendations. Much will depend on the outcome of the consultation and those who support an increased, more effective use of ADR in the justice system are urged to make a contribution.

How different it all is in Ireland which recently and seemingly uncontroversially passed a Mediation Act. Drafted in clear, plain English this very effective piece of legislation includes a strong presumption in favour of mediation.

This all important statute is only a few weeks old and it is “early days”. However, the good, honest intentions of the Irish Parliament are there for all to see.[4] [5] Perhaps the CJC should simply recommend that it is incorporated into British law. One also trusts that countries such as Portugal, which are reportedly giving serious consideration to legislating for the increased use of ADR, will scrutinise the Irish model.

[1] Civil Justice Overseers Back “Presumption” of Mediation by John Hyde, Law Society Gazette, 17/10/2017

[2] CJC ADR Working Group Interim Report October 2017 – https://www.judiciary.gov.uk/wp-content/uploads/2017/10/interim-report-future-role-of-adr-in-civil-justice-20171017.pdf

[3] https://www.judiciary.gov.uk/publications/cjc-invite-submissions-on-the-future-role-of-adr-in-civil-justice/

[4] Irish Mediation Act 2017 https://www.irishstatutebook.ie/eli/2017/act/27/enacted/en/html

[5] See also ASM March 2017 blog by Brendan Schutte – https://www.albertsquaremediation.co.uk/single-post/2017/03/18/Civil-and-Family-Mediation-Mediation-Act-Imminent-in-Ireland