CJC Report on Alternative Dispute Resolution: a general overview
Published 01/03/2019 by Marco Montanaro
A report recently published by the Civil Justice Council (CJC) has traced the development of Alternative Dispute Resolution, exploring its current availability, what the means to promote it are and to what extent the general public is aware of its use. Have a look at our new article to find out more!
Back in 2016, the Civil Justice Council (CJC) set up a Working Group to chart the development of Alternative Dispute Resolution (ADR) and review the ways in which it was being promoted, publicized and made available in the Civil Justice System in England and Wales. In December 2018, the CJC Working Group came up with its final report on ADR, broadly covering three areas: (1) awareness, (2) availability and (3) means of promotion of ADR.
The report begins with acknowledging the existence of more than one ADR techniques. Although mediation may be seen as the dominant one, it is clearly not the only one. A broad variety of ADR techniques is listed on a scale ranging from the most facilitative (where a neutral third party merely assists the participants in reaching their own agreement) to the most evaluative one (where, instead, a third party usually predicts how a judge would adjudicate on the litigants’ case), going through more hybrid forms, like round-table meetings, negotiation, judicial neutral evaluation, private early neutral evaluation and conciliations.
Awareness of ADR
The Report’s findings on public awareness of ADR are unequivocal: there is a huge lack of understanding resulting in the option being hugely underused. Interestingly, however, high-value cases and small money claims are often successfully solved through mediation; but between these two, there still remains a considerable lacuna of use. Cuts to legal aid and the resulting reduction in availability of legal counsel, have contributed to public ignorance of ADR; while the Government looked to ADR to pick up some stock from the lack of advice service, it failed to appreciate the role they played in directing the public to ADR services.
Introduction of a central website (‘Alternatives’), providing information and possibly video demonstration of different ADR techniques, is suggested as a viable response to the knowledge gap. The Report also recommends interweaving public awareness of ADR into public legal education in England and Wales; promoting peer mediation in schools and colleges; including ADR in professional training across all law faculties in the country; making it a professional duty in the legal sector to ensure that clients understand all available alternatives to litigation.
On top of that, the need is also felt for a ‘unique voice of mediation’ in England and Wales, with mediation councils and leading bodies agreeing over a standardized public education around mediation. Last, but not least, the report also recommends that the ADR community circulate mediation and other ADR techniques in the broadcast media and social media.
Availability of ADR
Regarding availability of ADR, a variety of recommendations are made. First, it is suggested that small claims mediation schemes be fully resourced, allaying fears that it could be crippling under a soon-to-be-expanded workload. The idea to accredit cheaper mediation scheme consisting of 3-hour telephone mediations is also ventilated and referred back to the Civil Mediation Council for further consideration. Online courts are also likely to play a pivotal role in the future of ADR. In this respect, two recommendations are made: first, case officers operating in online courts are to be subject to an appropriate training and recruitment in ADR matters; second, a set of standards is to be established so as to regulate ODR, ensure its efficient administration and thus make it more ‘acceptable’ and palatable to users. The burden of setting the right standards, however, is not placed on any public body in particular, the onus being on the ADR community in general to ensure a standardised framework is achieved.
Promotion of ADR
The CJC Report identifies the court system and the government as both having a major role to play in promoting and encouraging the use of ADR. While it finds that courts already encourage ADR to a more or less good extent, it recommends that their procedures be reviewed to make sure (1) that there is a presumption that ADR will be attempted by the parties and (2) that litigants are informed as to all the available alternatives to litigation. Another recommended way of expanding ADR and promoting its use is the narrowing down of circumstances in which the courts will find a refusal to mediate to meet the standards of reasonability under the Halsey Guidelines. In Halsey v Milton Keynes General NHS Trust  EWCA (Civ) 576, the Court provided guidelines as to when to exercise its discretion to impose cost sanctions on a successful litigant for unreasonable failure to have considered ADR: obviously, lowering the standard of unreasonableness is likely to result in a strong push towards ADR.
By comparison, British Columbia has introduced a Notice to Mediate system. The Notice to Mediate is a quasi-mandatory procedure meant to allow the party who wishes to mediate to deliver a Notice of Mediation (NTM) to all other litigants. If they take up the option to do so, then all parties must jointly agree on a mediator within a certain timeframe. There are, however, exemptions from the procedure that the notice recipient may rely on to disagree to mediation and, in some cases, ask the court to supervise (these include cases where the extent of damage in money claims mediation is not clear as yet, or where a mediation has already been unsuccessfully attempted). It is important to note that, in these cases, the court is confined to a supervisory role, rather than given full enforcement powers: the system thus defaults the parties into ADR without relying on a judge-enforced compulsion. The system’s success can be readily appreciated by having a glance at the figures: around 37000 motor vehicles actions were mediated between 2002 and 2012 using the NTM system, and around 78% of them were settled through mediation (you can find most relevant data on this website).
As the CJC report observes, a notice-to-mediate instrument like the one adopted in BC would immensely benefit our legal system too. Indeed, it seems to strike the right balance between an overly-harsh legal compulsionto mediate and a too-lenient approach to those unreasonably ignoring the benefits of ADR. On one hand, there is indeed little if no support across the UK for a legally enforceable compulsion to mediate; on the other, the current overly-lenient judicial approach to ADR has equally attracted robust criticism.
Ultimately, the United Kingdom still lacks a systematic approach to ADR. Unfortunately, the scant awareness of ADR makes any effort to systematise it even more difficult. A vicious circle ensues: we are unable to standardise something people are essentially unaware of and all the more unable to make people aware of something they still feel as unusual. Developments from around the world may provide useful insights into the world of ADR: finding inspiration in them may be a promising way forward.