The Civil Justice Council (CJC) is reviewing alternative dispute resolution (ADR). This review gives rise to a number of issues.
In 1997 I led the campaign for the establishment of the CJC as Chairman of the Selborne Group (the first cross-profession lobby group) supported by Christopher Clarke QC and Michael Napier (as they then were). Now the Council faces its ultimate test: how to respond to rapid reductions in the Ministry of Justice (MoJ) budget at the same time as rapid rises in the Small Claims limit.
The Council’s ADR Review brings each of these challenges into sharp focus.
The CJC is reviewing possibilities for resolving disputes outside the formal courts. This review will inevitably engage issues relating to IT and the civil justice system and will give rise to controversies which only the Council is capable of resolving.
The overriding approach to any reforms is expressed best by Jeremy Bentham: ’The fundamental axiom [of any reform], is the greatest happiness of the greatest number … [this] is the measure of right and wrong.’
This should be the only valid principle upon which reform should be founded. Not the interests of legal professionals, not the interests of mediators nor the arbitrators but the overriding interests of the citizen.
2019-2020: the perfect storm
Next year funding for the Ministry of Justice falls off a cliff. That date was fixed because Government said that by 2020 the civil justice system would be fully digitised. Unfortunately the system is far from fully digitised. Brave steps have been taken by Susan Acland-Hood and her team. I welcome those efforts but they are too late and too little.
The solution lies in private funding. I applaud the ABI’s recently announced proposal to build a portal to handle next year’s tsunami of Litigants in Person (LiPs). This follows, of course, upon Insurers’ funding of the creation of The Portal Company’s online dispute settlement Platform. Likewise I acknowledge and celebrate the vision of the Commercial Litigation Association in funding the development of the Platform for Andrew Ritchie QC’s truly innovative Personal Injury Claim Arbitration Service.
The rise of LiPs in the Small Claims track and the fall in the MoJ budget
The civil justice system will not be completely digitised by next year. The obvious answer is to divert the LiPs into non-Court based solutions. Hence part of the rationale for the Council’s review of ADR. However that will not be enough.
In order to meet demand ADR solutions must be online. Citizens will not contemplate the contrary. Hence the providers of ADR solutions must be online or risk irrelevant.
One big question is whether any solution should be compulsory? The main argument against this is Article 6 in Schedule 1 to the Human Rights Act, 1998:
’In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
But objection on this ground is misplaced. Over 400,000 disputes were resolved via The Portal Company not in court proceedings not by compulsion but by an expectation (see the Preamble to the Pre-Action Protocol on Low Value Personal Injury Claims in Road Traffic Accidents and the same phrasing is used for both Employers’ Liability and Public Liability claims). Expectations can solve many of the MoJ’s (and the Council’s) challenges. The parties’ right to choose the Courts to resolve their disputes is not excluded. The expectation in these Protocols is a great enabler. The phrasing enables the citizen to choose between Court and another form of dispute resolution.
What do citizens want?
Citizens want solutions. Not later but sooner. Working with lawyers that can deliver those solutions at proportionate (preferably fixed or predictable) cost, online and now. Nor do they much care whether they solve their issue in court or outside court. What they want above all is a speedy resolution and they expect that resolution to be conducted online.
Let’s get this straight: for the citizen, the majesty of the Court room is irrelevant. For those that want it, and in some cases need it, the majesty is there.
Tony Guise is a panel member at the ADR Workshop being held by the CJC on 6 March 2018, and is director of eARB Limited, which provides Cloud-based platforms for mediation and arbitration services.