Civil justice overseers back 'presumption' of mediation

Did yesterday mark a step in the road to compulsory mediation? Yesterday, a working group of the Civil Justice Council came out in favour of parties in most casesbeing required to engage in alternative dispute resolution.

The expert working group has published a interim report on the existing role and potential future role of ADR in civil justice in England and Wales. Chairman of the CJC working group, Bill Wood QC, said:

“ADR has failed to achieve the integral position in the civil justice system that was intended and expected for it at the time of Woolf. The CJC assembled this Working Group (including representatives of the Bench, the professions, the ADR community and an academic) to try to understand the reasons for failure and to suggest some possible solutions.

“Our aim is to stimulate a debate between all stake-holders as to the nature of the problem and the possible practical solutions, including the thorny issue of mandatory mediation. With the Online Court in development and pilot local mediation schemes up and running in a number of centres, this is an exciting time. The Report does not try to be utterly comprehensive nor does it purport to have all the answers but we hope it can make a contribution, and that in due course a final report can set out a widely-supported basis for moving forward.”

The working group said that measures to promote ADR were not working and that an element of compulsion may be necessary. However, its 98-page report stopped short of advocating across the board compulsion.

The working group has suggested that there should be a presumption that in most cases that if parties have not been able to settle a case by the directions stage they should be required to bring forward proposals for engaging in some form of ADR. A minority of the group advocated for ADR to be a condition of access to the Court in the first place or later as a condition of progress beyond the CCMC.

Compulsory ADR is already in place for disputes in the family and employment arena. The ambition of the working group is to make ADR "culturally normal" across the dispute resolution landscape.

The recommendationswill be closely scrutinised by justice ministers who are seeking ways in which to promote the settlement of more disputes away from Court. The CJC has opened a consultation based on the report that will close on 15 December 2017. Written submissions should be sent tociviljusticecouncil@judiciary.gsi.gov.uk.