Compulsory mediation edged closer today as civil justice experts came out in favour of parties in most cases being required to engage in alternative dispute resolution.
A working group of the Civil Justice Council said measures to promote ADR are not working and should be extended further to include an element of compulsion. But its 98-page report stops short of agreeing ADR should be a mandatory condition of being able to issue proceedings.
The recommendations will be keenly scrutinised by justice ministers seeking to promote more ways to settle disputes out of court. The CJC has opened a consultation based on the report that will close in December.
The group said ADR has yet to become an ‘integral’ part of the civil justice system and wants courts to promote its use more actively at and around the allocation and directions stage.
‘We think that the threat of costs sanctions at the end of the day is helpful, but that the court should be more interventionist at an earlier stage when the decisions about ADR are actually being taken,’ said the interim report.
‘There should be a presumption that, in most cases, 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 group members proposed going further, making mediation either a condition of access to the court in the first place or later as a condition of progress beyond the case management conference.
The group was set up following a court users survey in 2015 found relatively low levels of awareness of ADR. The subsequent report followed from Lord Briggs’ civil justice review, published in July 2016, which is paving the way for online dispute resolution.
Compulsory attendance at mediation is already in place for family and employment disputes, and the group said it was now the task of practitioners to make ADR ‘culturally normal’.
The group called for careful consideration to amending EU or domestic regulations to require companies to participate in consumer ADR. It also wants the court to feel able to support the imposition of a costs sanction where the conciliation option is ignored by a complainant.
The group is mindful of imposing requirements that are too heavy-handed or adding unnecessary costs to cases. It also notes the largely negative feedback about mandatory pre-action system from jurisdictions such as Italy.
But the majority say they have a ‘more open mind’ on the question of compulsion and believe it can benefit all but a small number of cases, as well as remove the ‘who blinks first’ problem where lawyers perceive an offer of mediation to be a sign of weakness.