Family courts' approach to resolving disputes may offer a way forward for a civil system that has still not embraced ADR, says Terence John

The Court of Appeal has warned that a refusal to mediate may lead to 'uncomfortable costs consequences' and that it is a 'high risk strategy'. So why - seven years into the new civil justice regime - has alternative dispute resolution (ADR) yet to take off?


Mediators regularly attribute this to a lack of awareness among practitioners and judges. Recently the Department for Constitutional Affairs and the Courts Service sponsored a national campaign to raise awareness of the availability and benefits of mediation. But is awareness the issue, or are there wider considerations?


Mediation is but one form of ADR. However, practitioners maintain they have always undertaken ADR. By and large, lawyers do their utmost to achieve the best outcome for clients, which often means carving out creative and mutually acceptable solutions.


District judges, in their case management role, actively encourage compromise whenever appropriate. For example, we give whatever assistance we can to parties in the small claims track to achieve for themselves an outcome that is qualitatively better than the litigious solution. Equally so, judges recognise that particular cases can benefit from a different form of intervention - mediation.


Awareness is not the point. Actual facilities for mediation have been, and in most places remain, sporadic. When the moment is right for mediation, the need is for prompt access to a service that is readily available at proportionate cost.


Disparate providers, homespun schemes, extra cost and a process that takes significant time all run the risk of losing the moment, or of conflict with Civil Procedure Rules timetables and the imperative to have cases listed for trial. Cost must be proportionate and the process tailored according to the track, value and nature of the claim.


But practitioners and judges can also ask why such a high proportion of allocated cases are not tried but settle late and, just as in the old days, often at the door of the court. Where voluntary court-annexed schemes exist, are they utilised sufficiently?


Experience in the family jurisdiction demonstrates the benefit of judicial intervention in private law applications or in the ancillary relief financial dispute resolution regime. Of course, personal injury and other litigation is different and it has to be recognised that a factual dispute or inconclusive medical evidence alter the judge's role and may reduce the possibility of negotiated settlement.


Nevertheless, much can be and is achieved by active case management. Judges identify and address the issues and their merits. But why not develop it further with a civil equivalent of the ancillary relief regime in appropriate cases? When the parties are deadlocked, they could be given the means of referral to a judge for evaluation of all or some of the issues, perhaps even before proceedings have begun. In the most entrenched cases, having the judicial view introduced into the equation in ancillary relief applications is the key. It frequently helps the process, the advocates and, most importantly, the parties themselves.


A formal process - judicial neutral evaluation - in the civil jurisdiction, which goes beyond what the court can currently direct, could prove equally invaluable by taking its place alongside the other means available to the parties.


We now need to recognise that an effective, accessible and economic ADR facility cannot consist of a single model and concentrate on creative processes that are adaptable to the particular features of the case.


District Judge Terence John sits at Cardiff County Court and is the new President of the Association of District Judges