#GuiseOnJustice – Compulsory mediation – what are you achieving apart from a job creation scheme? by Tony Guise

To the University of Hull (virtually, of course) on 26 March 2021 for the launch of the School of Law’s Mediation Centre and to take in the Master of the Rolls’ robust rhetoric about the future direction of civil justice in England and Wales. His themes were, once again, IT in the civil courts and much more ADR with much greater integration in the civil justice system.  There was talk of some forms of ADR becoming compulsory.  A report of his speech by the Law Gazette’s excellent John Hyde drew many comments.  One has been used for the title of my column this month.  Full credit therefore to Anonymous who posted that pithy observation on 29 March 2021 at 2:58pm.  

Compulsory ADR and IT in the civil courts are the greatest challenges facing the new MR.  They will pre-occupy his term of office and draw in the equally big issues of funding for civil justice and whether and, if so, how the private sector can play a greater role in delivering civil justice than it does already.  Doubtless conscious of the scale of these challenges he has already hedged his bets.  During his interview with David Greene, Immediate Past President of the Law Society of England and Wales, the MR explained that, during his term of office, he hoped only to start the civil justice system on its journey toward becoming fit for purpose in the 21st century.

This month I consider the question of compulsory ADR and take a, very brief, look at what more the private sector can offer to make our civil justice system fit for the 21st century.

The red rag, to some, of “compulsory” ADR risks mistaken perceptions.  Civil justice has benefitted from compulsory ADR in E&W for many years.  It has been welcomed both in Family law since 2014, and (also from 2014) in disputes relating to children’s Special Educational Needs and Disability. Both schemes have been successful, both have involved lawyers doing what lawyers do best – supporting and advising their clients.

 One of the first instances of (quasi) compulsory ADR was in the commercial construction sector when adjudication was put on a statutory footing under the memorably named Housing Grants, Construction and Regeneration Act, 1996; in force from 1998.  This was, if you like, a job creation scheme for adjudicators.  However, few, if any, would deride this as a job creation scheme, least of all construction lawyers, for whom it has provided a new and profitable sector of work.  The 1996 Act led to a 600% increase in the number of appointments taking place via Adjudication Nominating Bodies in the first year of its operation.  Good for adjudicators but also good for lawyers.  The scheme resolves disputes quickly, improves cashflow in the construction industry and led to the creation of much more work for lawyers. 

In commercial (and other) contracts there are tiered dispute resolution clauses which typically begin with ad hoc negotiation leading to mediation and move on to arbitration.  This pluralistic approach to dispute resolution is very much what the Master of the Rolls has in mind for civil justice in E&W.  This reform moves away from a system based on confrontation toward a wider focus on resolution involving more ADR, except without the “A” in ADR.

The current binary system of “win/lose” does not serve users of the courts well.  A new century calls for a new approach – one that recognises that not every dispute requires a binary outcome.

The Civil Justice Council’s ADR Review delivered its Final Report in November 2018.  The written submissions to that review are still available to read on the CJC website: https://www.judiciary.uk/related-offices-and-bodies/advisory-bodies/cjc/cjc-consultations-and-responses/cjc-consultation-on-adr/.

Those submissions are worth revisiting.  Almost all call for more ADR but stress this should not be a “one size fits all” approach.  That is important and I am sure the MR has that point firmly in mind.  Submissions from the law firm CMS, the London Solicitors’ Litigation Association and DisputesEfiling are especially helpful.

As for IT in the civil courts the Modernisation Programme is sadly becalmed for want of further funding and it is unlikely to receive any more money any time soon: enter the private sector, again.  The most recent example of the private sector supplementing the Courts’ IT is the Official Injury Claim portal funded and delivered by the private sector (Insurers and MIB respectively) and due to go live on 31 May.  There are many controversies surrounding that project and I have probably courted enough controversy for one column!  Perhaps a suitable topic for May?