14 Jun 2022
On 8 June 2022, the Master of the Rolls and Head of Civil Justice in England and Wales, the Rt. Hon. Sir Geoffrey Vos delivered the 12th Roebuck Lecture on “Mandating Mediation: The Digital Solution” at 12 Bloomsbury Square to both an in-person and online audience. This marks the first time that the Roebuck Lecture was delivered in a hybrid format.
CIArb’s Director General Catherine Dixon gave a warm welcome, noting that mandatory mediation has become a popular topic around the world. She drew attention to CIArb’s commitment to continuing to support all forms of effective dispute resolution around the world.
European materials relating to mandatory mediation
Sir Geoffrey first considered the European materials which serve as a useful backdrop to the issues raised by mandating mediation. He referred to a report by the European Law Institute and the European Network of Councils for the Judiciary, as well as a Statement of European Best Practice relating to the approach courts ought to use while interacting with all types of alternative dispute resolution. The Statement identified that judges should oblige parties to utilise mediation instead of continuing their court-based dispute resolution process; that judges should ensure that they uphold parties’ access to the court as well as compliance with Article 6 of the European Convention on Human Rights (ECHR); and that crucially parties understood whether mediation was mandatory or voluntary, making sure that consent to voluntary mediation was given freely by fully informed parties.
With respect to the report, Sir Geoffrey pointed out that it reflected on the relationship between courts and mediation processes, with a focus on how the two might be “combined, utilised or made to function effectively alongside one another”. He commented that much of his thinking on the development of digital justice systems was informed by the work done in developing this report.
Furthermore, he offered that the ELI/UNIDROIT civil procedure rules provided that it is fundamental that lawyers and courts encourage parties to use out of court dispute resolution methods. Sir Geoffrey highlighted how these rules were “in tune with the direction of travel towards making (A)DR an essential part of the court-based dispute resolution process”.
The developing digital justice system in England and Wales
Under Sir Geoffrey’s vision, the digital justice system will be based online, not employing traditional methods to identify the issues to be resolved. Under the term “smart system”, there would be a focus on identifying the real issues that divide the parties, in addition to attempts to resolve the issues at “the earliest possible stage in the dispute.” The foundation of this smart system would be a common data architecture, which has a consistent approach in the way information or data about a case is collected as it travels through the smart system towards the ultimate goal - resolution of the dispute. In elucidating on why it is vital to develop systems that are dedicated to resolving disputes at the earliest possible stage, Sir Geoffrey stressed that protracted disputes have huge economic and psychological impact, reducing economic productivity for people and businesses.
Under this digital system parties would be directed to pre-action online portals. These portals will hold the relevant information on the dispute in a manner that is standardised across other portals and the digital court justice system. Meaning that, if all attempts to resolve the dispute are unsuccessful, the relevant information can be transmitted directly to a digital court.
He hopes that soon all civil cases will begin and progress online. Additionally, he mentioned that by the end of the initial Reform Project, which is planned to finalise early next year, all family, civil, employment and immigration cases will begin and continue online. This online process will ask a series of questions to determine the issues in the case – thus detecting where agreements lie and removing the need for statements of case or lengthy complaints. This system will integrate mediated interventions at every level of the process.
The controversy of mandatory mediation
Sir Geoffrey gave several reasons why the topic of mandatory mediation has been so controversial. Firstly, he expressed that in Europe there is a “lack of confidence in the neutrals who offer mediation services”. It is important to note however, that this has not prevented European countries from mandating mediation.
Secondly, in countries like the UK, he implied that delaying court proceedings to allow parties to mediate “might be regarded as a breach of Article 6 of the ECHR”, namely, an individual’s right to a fair trial. He added that the familiar case of Halsey v. Milton Keynes General NHS Trust was a key example of this. However, Sir Geoffrey stated that the Civil Justice Council report which considered the legality of compulsory ADR, concluded that mandatory ADR was compatible with Article 6 of the ECHR. He emphasised his endorsement of the report.
Thirdly, mandatory mediation has proved controversial, in his perspective, because there is a perception that parties cannot be forced to mediate. It was suggested that this would only serve to entrench parties’ positions.
The fourth reason Sir Geoffrey drew attention to was the permissibility of courts making orders that require parties to engage in ADR, rather than “progressing the judicial resolution that the court process is designed to achieve”. He elaborated that the introduction of an Online Procedure Committee, which will create rules for the digital justice system, would alleviate this issue.
A solution using digital justice systems
Sir Geoffrey explored how digital systems could provide a solution to the issues raised by mandating mediation. He detailed how a mediator promotes offers and counter-offers and, once these offers are rejected parties reach a stalemate. He offered that, in a digital environment this would not occur as issues are identified by asking questions, rather than through the use of adversarial statements of case.
He determined that it is not necessary to mandate mediation within the digital justice system because a large percentage of claims would be settled consensually. Although, he caveated this by stating that mediation would still be a tool available within the digital justice system. So, if the initial process did not work the next stage would be for the platform to suggest telephone mediation, followed, if unsuccessful, by face-to-face mediation. Sir Geoffrey acknowledged that once the public realise the efficiency of digital justice in bringing out compromise, parties will be more open to mediating when the process is offered.
Lastly, Sir Geoffrey underscored the importance of making sure these systems are accessible to those who are vulnerable and digitally disadvantaged. He further added that parties will still be able to obtain judicial resolution if they are unable to settle their dispute within the digital space.
CIArb President Jane Gunn FCIArb, led a question-and-answer session with Sir Geoffrey after the conclusion of the lecture. Many thought-provoking questions were posed by both the in-person audience as well as the online audience, demonstrating how well the lecture was received.
The Roebuck lecture 2022 is available to watch now on CIArb’s Youtube channel. The transcript is also available to read now.
Should you have any further questions about this lecture, or wish to find out more about CIArb’s ongoing mediation discussion, please email Enehuwa Adagu at firstname.lastname@example.org
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