“It is an ideal time to look in detail at how the potential for ADR can be maximised.”
Sir Terence Etherton, Master of the Rolls, Chair of the Civil Justice Council
The Master of the Rolls was speaking on the launch of the Civil Justice Council Consultation ‘ADR and Civil Justice’ in October: the deliberate use of the word “maximised” confirms that, in the view of the senior Judiciary the question to be addressed is not whether or not ADR should be used but how much and how often. The Consultation (responses are due by 15 December) feeds in to a number of reforms, reviews and reports that consider the shape of the civil process in the early 21st Century. It would be easy to take a view that the Online Court (non-tortious claims under £25,000) can be ignored, that the LASPO review (announced for 2018) will be an “it’s working / no change” review and that the ADR review is only really likely to affect higher value cases (which often settle and mediate anyway).
To take such a view would be a mistake. Substantial Government funds are committed to the Online Court and it is plain that a digital process could deliver an efficient and accessible justice process that will not stop at a segment of the Fast Track but will embrace other types of claims and like Jackson’s proposals (or Jackson 2.0) for Fixed Recoverable Costs will extend upwards by value. Jackson’s recommendation is for an Intermediate Track of cases up to £100,000 to be subject to his recommended Fixed Recoverable Costs regime.
Both the Online Court and Jackson 2.0 include specific provisions for mediation (the most common form of ADR in the civil process). The former, reflecting the process of the British Columbia Civil Resolution Tribunal on which it is closely modelled, will require conciliation by the court as part of the process to an adjudication. The latter includes specific allowances or “ring fenced” fees for ADR.
The CJC Consultation on ADR should not therefore be considered a ‘one off’, written by the mediation community, that can be ignored. As is clear from the quote of the Master of the Rolls the recommendations will be considered and considered sympathetically. There remains huge pressure on the MoJ to deliver a civil process that is cost effective and provides a service to its users that is fit for the 21st Century. A recent Minister of Justice (Michael Gove) spoke about a “creaking and outdated” system that would have been familiar to Dickens. Reforms detailed above respond to that criticism: Fixed Recoverable Costs offers the client certainty and transparency; ADR offers broader client-centric resolutions that, it is argued, are often broader solutions than a judge can award by way of adjudication. More importantly it is easy to see how the various reforms will fit together. Civil justice will be digital for all claims (no quaint exceptions in obscure tribunals), with predictable costs and ADR built in to the process itself.
Further Blogs will consider some of the details of the CJC Consultation but whether the reader likes or loathes mediation (or is an ‘at the right time’ agnostic) the report cannot be ignored because it will shape the civil litigation process in the near future. Do respond – whichever group you are in: the deadline is 15 December.
Written by Terry Renouf, consultant at BLM