12 Feb 2019
The publication of the long-awaited final report of the Civil Justice Council’s ADR Working Group has once again focused attention on whether ADR should be mandatory. Increasingly jurisdictions around the world are opting to mandate the use of ADR in an effort to expedite justice and improve citizens’ experience of securing justice.
In October 2017 Turkey mandated the use of mediation for all employment related disputes as explained in the Kluwer Mediation Blog[1]. The law was enacted following a 2 year study co-ordinated by the Council of Europe[2] which is worth reading.
Two important sanctions are being introduced to drive the mandatory mediation programme forward; as if rules obliging parties to mediate alone were not enough:
a) A civil claim will be denied if it was not mediated before commencement;
and:
b) If one side does not engage with the mediation the back-sliding party will pay the costs in any court proceedings – even if the back-sliding party wins!
Serious incentives!
The new Turkish law requires mediations to be complete within 3 weeks which is going some. Compare, for example, evidence from Trust Mediation (TM) of their work with NHS Resolution mediating clinical negligence claims. Their data shows TM complete 60% of all mediations within 4 weeks of instructions being received[3] ; which is considered quick. Go Turkey!
In England and Wales the CJC’s proposed approach to ADR is rather more nuanced but, in the author’s view, perhaps not so different to Turkey.
Two schemes are praised in the report: Andrew Ritchie QC’s Personal Injury Claims Arbitration Service (PIcArbs):
“PIcArbs is offering an efficient, online, arbitration service” (para 3.14)
and the NHS Resolution’s mediation scheme:
“The scheme therefore goes some way to resolving the funding issue and ensures that a trusted, quality‐assured cohort of mediators is available. The services are already proving successful”. (para 5.7, p 25)
Neither scheme is, of course, mandatory.
Reading between the lines or indeed just reading the lines themselves the Report makes certain facts of litigation in the future very clear:
“We propose earlier and more stringent encouragement of ADR in case management: there should be a perception that formal ADR must be attempted before a trial can be made available”[4]
Yet only three bullets below this passage the Working Group makes clear they reject the Turkish form of mandatory mediation: “we do not support the introduction of blanket compulsion in the sense of an administrative requirement that proof of ADR activity has to be provided as a precondition of any particular step.”[5]
Nevertheless in the Final Report the word “must” makes an appearance on no less than 14 occasions. The quotation above is perhaps the Report’s most telling use of the word “must”. However it may help readers comprehend the extent of the CJC’s embrace of “must” to look at a few of the other instances.
If any greater signal were wanted then the following passage describing the focus on “must” in the Pre-Action Protocol is not so much a signal as a blazing beacon lighting the CJC’s preferred way forward:
One contributor to our workshop suggested that the RTA/EL/PL Portal Protocol had worked despite being firmly “voluntary” in tone. However, this is not the way it reads. The typical verb it uses is “must”, whereas the typical verb in the other Protocols is “should”. We think that firmer language throughout the protocols …. [and] compliance with the ADR duties created is needed”
Finally this passage makes the quasi-compulsion sought by the Report crystal clear:
“ultimately the parties must attempt to mediate…” (para. 8.32)
In paragraph 8.29 there are forthright words rejecting the established opt-out grounds making clear there is no place for those easy get-outs in ADR’s future. Instead (in para 8.28) these are proposed to be replaced with “significantly narrow[er]” opt-outs intended to require some formal ADR process to be undertaken.
[1] `The parties have already attempted mediation (or possibly JNE or some other form of ADR) without success
[2] The parties are already committed to an ADR process in the near‐term.
[3] The parties (or a party) satisfy the Court of a need to wait (often until after disclosure) for any meaningful negotiations to take place, but they will commit to using ADR at that stage if the case has not otherwise settled.
[4] There has been unreasonable or obsessive conduct by one or other party (of the Hurst v Leeming Variety).
[5] There is a genuine test case in which the court’s judgment on an issue of principle is required.
In the author’s view the Report’s words about the voluntary nature of ADR are in sharp contrast to the Report’s proposed actions. As Professor Dominic Regan said to the author recently: “do it or die”. Litigators beware: you have been warned. ADR neutrals rejoice: your time has come!
TONY N GUISE
Tony is the Director of DisputesEfiling.com Limited the provider of online ADR platforms and a Past President of the London Solicitors Litigation Association. An abridged version of this article first appeared on the Hunt ADR Blog.