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Compulsory mediation?

11 January 2018

In October 2017 the Civil Justice Council (CJC) published its interim report on the future role of alternative approaches to dispute resolution (ADR). The report makes various recommendations as well as inviting responses. It follows input from a working group tasked in January 2017 to examine uptake of ADR in civil justice. The primary purpose of the report is to find ways to encourage its use.

Matters considered by the CJC include whether ADR (and mediation in particular) ought to be compulsory and, if so, at what stage; how ADR may be made “culturally normal”; and whether costs sanctions ought to apply to successful litigants for a failure to use ADR if a “similar” result could have been achieved more cheaply using ADR. A series of questions were posed in closing by the report with the CJC set to analyse responses received.

The working group researched the use of ADR overseas and settlement rates where ADR is compulsory. This makes interesting reading. The CJC were particularly impressed by the British Columbia experience. There a “Notice to Mediate” procedure requiring compulsory mediation has seen a marked increase in use. Apparently the threat of compulsion appears to be enough and in practice there is seldom need for the process to be imposed on the opponent.

In summary, the working group concludes that more discussion should take place so that increased information is available to litigants during proceedings, particularly around the allocation and directions stage. Increased intervention from the court is also sought, above and beyond costs sanctions at the end of a case. The report cites a failure to make ADR familiar to the public and culturally normal as a “fundamental problem”. Notably there was a difference of opinion among members of the group as to whether ADR should be compulsory, perhaps even as a pre-condition before being permitted to start a claim.

Sophisticated litigants and those with the benefit of advice in particular tend to be well aware of the benefits of ADR, making active use of mediation. However, those dealing with lower value claims or litigants who proceed without the benefit of legal representation may be more likely to benefit from increased information. To this extent, the report recognises a range of approaches may be required by reference to the value of a dispute.

Increased information and greater access is one matter but compulsion is another. Many disputes tend to have a “right time” to settle. The circumstances and point in time varies from case to case with emotions playing a part. It may be that those involved have had a chance to ventilate concerns or issues; sufficient information has come to light with the result that a more considered view of the merits is possible; or perhaps parties have simply become emotionally drained or fee-weary.

At any rate, mediations scheduled too soon often fail and ultimately there needs to be genuine engagement on each side if the process is to be successful. Compulsion at a pre-determined stage may serve to increase costs in some instances with parties simply paying lip service without fully engaging in the process. Mediation is a powerful tool but its ultimate success relies on its consensual nature.

To read the full report click here.

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