The Civil Justice Council has published the final report of its Working Party on ADR which looks at all forms of ADR but predominantly mediation. In this article Jacqui looks at what they had to say about compulsory mediation and other ideas to encourage use of mediation.
Compulsion v encouragement
There is little support for anything amounting to ‘blanket, compulsory or automatic referral to mediation’ but the Report does suggest that there should be a ‘stronger level of encouragement and for something close to a presumption (rebuttable in, for example, genuine test cases) that ADR would need to be tried in every case.’
Reference is made to the Directions Questionnaire which currently asks a party not seeking a stay for ADR to explain their decision. The recommendation is ‘that this section could be strengthened so as to make it clear that there are only certain reasons which are going to be acceptable.
It would explain that it is not acceptable to reject ADR simply because the case is too complex, that the parties have bad relations, or that there may be issues of law involved etc. The report recommends that the reasons given by the Court of Appeal in Halsey as acceptable reasons for not entering into ADR should be urgently reviewed as they are too generous to the refusing party.
Costs whilst going along
The report also considers that ‘The approach of reserving the question of cost penalties to the position post judgment should, if at all possible, be replaced by something stronger happening earlier. We think there is a need to develop a form of stronger court intervention for use mid-stream at the time that the decisions to use or not use ADR are being taken.’
Notice to mediate
The Report is in favour of a more radical Notice to Mediate system such as that operating in British Columbia. Under this scheme, if one party issues a Notice to Mediate, being a formal invitation to mediate, then a mediation will kick into action and a mediator will automatically be appointed from a Court-approved roster (if the parties do not agree on a mediator themselves) without any consideration or intervention by the Court.
The report recognises a number of policy decisions which will need to be made for this scheme to work e.g. should there be an ability to refer to court if the Notice to Mediate is issued by an unreasonable opponent who you believe will never settle?
The report mentions that the only basis for relief from mediation in British Columbia is attendance at a previous, failed, mediation.
In British Columbia the sanctions for ignoring a notice to mediate include striking out the defaulting party as well as costs orders. Would that be too severe for our system? And would there be sufficient confidence that there is an ADR product of guaranteed quality available as a default system?
The Report specifically mentions boundary disputes as an area where compulsion to mediate could be appropriate. It refers to the work currently being done by the CJC, RICS and Property Litigation Association to set up a joint Boundary Disputes Mediation Service. The basic idea is that the courts would be able to refer these matters to a quality-controlled panel of mediators. Whilst this is not the intention, it could in effect become a pilot for a more widespread quasi-compulsion route for all disputes. I am a member of this working group and hope to be able to report more on this next year.
For a copy of the CJC report click here.
This is a shorter version of an article on the CJC report, written by Jacqui, which first appeared in the Estates Gazette.