Litigation as a Last Resort

5th December ‘18

Yesterday a working group of the Civil Justice Council published a report recommending the focus on promoting awareness, availability and encouragement of Alternative Dispute Resolution (“ADR”).

The main types of ADR include mediation, round table meetings, negotiation and arbitration. All of these are used throughout civil disputes to encourage a settlement before the case proceeds all the way to trial and incurs the cost of doing so.

While it is accepted that ADR is a core aspect of the Civil Procedure Rules, the working group, throughout the development of their report, deduced that “awareness”, “availability” and “encouragement” were the underlying challenges being faced by ADR.

The working group concluded that a strategy was needed to combat these three challenges.

ADR Awareness

As is always said in civil disputes, “litigation should be a last resort” and it is imperative that the public are made aware that there are these other ADR options to achieve settlements early and at a lesser cost.

In order to make citizens more aware that there are alternatives to litigation, a number of conclusions for positive action were decided, including, but not limited to:

  • the promotion of ADR being seen as part of the wider challenge of public legal education
  • a new website as a central hub for information related to ADR
  • applauding initiatives such as peer mediation in schools and colleges
  • further marketing of ADR through broadcast media and social media

In addition, it was noted that the role of the solicitor to inform their clients and advise as to the appropriate stage in which to consider ADR is crucial.

ADR Availability

In terms of availability, the working group concluded further resources were required for the small claims mediation scheme; judges to be available for JENE; and to help promote standards for Online Dispute Resolution in order to push its promotion and acceptance.

ADR Encouragement

Finally, it was concluded that the court and government’s involvement in encouraging ADR must be heightened.

Practitioners have recognized the positive role ADR has in resolving disputes at an appropriate stage and therefore court guidance and documents should be adapted to reflect this. While the group explained that they did not agree with any “compulsory” or “automatic” referral to mediation at any stage throughout court proceedings, the term “presumption” was preferred with reference to the presumption that ADR is to be attempted at any appropriate stage of proceedings. The working group’s report concluded that claim documents (both the claim form and defence) should include a requirement on each party to prove their attempts to achieve a settlement. In addition, it was noted that an earlier and more rigorous encouragement of ADR in case management would be beneficial.

Part of the role of the court would be to review the ethos surrounding the implications for those who either ignore ADR or who underestimate its potential benefits with suggestions made that greater sanctions would be imposed on those who do not take reasonable steps toward settlement and/or the use of ADR.

To help with the process of using the court to encourage ADR, it was decided that a forum would be established for continuing liaison between judges and ADR professionals.

Sir Terence Etherton, the Master of the Rolls and chairman of the CJC announced yesterday that “Work has already commenced on the creation of the judicial-ADR liaison committee” to which William Wood QC, the working group’s chair responded “We are particularly pleased that our proposal for continuing liaison between judges and ADR professionals is already being acted upon by the Master of the Rolls”.

Overall, it seems as though there have been a number of steps taken already and more to come to promote the awareness and availability of ADR, and for the courts to assist in this encouragement.

If you would like any more information about alternative dispute resolution or litigation in general, please contact Alice Thomas who will be able to assist.

This paper is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.

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