Posted: Friday, 4 January 2019 @ 10:28
For the past few years the Civil Justice Council ADR Working Group has been looking at the role of Alternative Dispute Resolution (ADR) and considering how it can and should be used in the future. The main question posed was whether it should be compulsory.
They published their Final Report in November 2018. They ruled out compulsory ADR, recognising that in some cases it was not appropriate. One size does not fit all.
However, the Group did make recommendations to encourage the use of ADR. They identified the need to improve awareness of ADR across the board, from the public through the professions to the judiciary. They looked at the availability of ADR. And they looked at the encouragement of ADR by the Government and the Courts.
The Group identified the need to make consideration of ADR a central theme in any court action, whether or not there had been any pre-action discussions between the parties on the use of ADR. And the Group considered that Mediation was the most common and realistic port of call. They identified the need to reduce the circumstances in which parties could opt out of ADR, the need to provide quicker and cheaper forms of mediation, and the need to introduce some sort of Notice to Mediate process based on a system operated in British Columbia.
It may be helpful to briefly look at the rise of ADR and mediation in particular. At one time if the parties to a dispute could not reach agreement through negotiation, sometimes the only way of resolving the dispute was to initiate court proceedings. Going to Court is a difficult and costly process for any business, with many risks. But different forms of dispute resolution process have been developed over the years, and now the courts positively encourage the use of ADR and may penalise parties on costs if they have embarked on court action without first trying ADR, unless they have a very good reason for doing so.
The alternatives processes to court action are arbitration, adjudication, expert determination, neutral evaluation, and mediation.
Mediation is perhaps the most common forms of ADR. With mediation the process is confidential, “without prejudice”, flexible, and only binding if the parties agree. The mediator is a trained professional facilitator, skilled in identifying the strengths and weaknesses of each party’s case, and in moving the parties towards a settlement. Going to Court does deliver finality, with the judgement binding on both parties. The same can be true in mediation, where the parties agree at the outset how an agreement will be formed and whether or not they will be bound by it.
The crucial difference in mediation however is that there is no judgement. Instead the mediator’s job is to bring the parties to a consensual agreement. In court cases all relevant documents have to be disclosed and witnesses can be called upon to give written evidence or be summoned to attend court. This is not the case with mediation where the parties (and sometimes their lawyers) meet with the mediator and are given an opportunity to put their side of the case and state what they want by way of resolution.
Unlike court proceedings which are in the public domain mediation is strictly confidential. This can make mediation ideal for sensitive commercial disputes with employees or cases with potentially damaging publicity implications. The ‘without prejudice’ nature of mediation means that the parties can come to compromise more easily and can lead to a far more pragmatic solution centred approach.
Compared to court action mediation is very flexible and informal, meaning the parties can generally act very quickly and find remedies which suit both parties rather than being held within the strict code of the law. This is a great advantage where the parties wish to continue their ongoing commercial relationship. The mediator will act as “devil’s advocate” with each party in private, forcing them to recognise the weaknesses of their case, and the strengths of the opposing party, and so make them more amenable to a reasonable settlement. The mediator will bring their expert experience to bear in identifying solutions.
There are some weaknesses to mediation. For example the agreement is only binding if the parties agree. And unlike the judge a mediator has no legal power. But compared with the expense, inflexibility, uncertainty and often long drawn out process of court proceedings, mediation should always be considered alongside other forms of alternative dispute resolution before embarking on any court action.
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