As part of its role advising the Lord Chancellor and the Judiciary in England and Wales on civil matters, the Civil Justice Council (CJC) has published its final report on the positioning of alternative dispute resolution (ADR) within the civil justice system.
The report makes a number of recommendations around awareness and availability of ADR, as well as the extent to which ADR is encouraged by government and court processes.
We look here at one proposal that seeks to encourage the usage of ADR.
The CJC report recognises that the court has a difficult balance to be strike when it comes to ADR.
On the one hand, the courts need appropriate sanctions to encourage parties to engage. On the other, compelling ADR when it is inappropriate is often counterproductive as it increases cost and delay.
One approach proposed in the report is the British Columbia (“BC”) quasi-mandatory “Notice to Mediate” procedure.
Originally developed in 1998 to deal with personal injury actions, the procedure has been extended to a range of other actions raised in the BC courts[1].
A Notice to Mediate compels the other party to participate in mediation, unless they can rely on an exemption by court order.
Without an exemption, parties must agree on a mutually acceptable mediator within ten days, or apply to a designated roster organisation to choose a mediator.
Part of the attraction of this procedure is its clarity.
Specific circumstances are identified where mediation may not be required or appropriate.
Reasons include where there is already agreement to mediate, when all parties have already participated in mediation in the same dispute, where it is recognised that mediation is unlikely to result in a settlement, or where the extent of damage is not yet known.
How successful has this model been?
Figures confirming success rates are limited, and public availability of statistical data varies depending on the nature of the action.
Figures show that of the 37,000 motor vehicle actions that were mediated between 2002 and 2012, an average of 78% of these mediations resolved each year[2]. Nonetheless, the BC Attorney General’s website notes that the advantage of the Notice to Mediate process is that it simply
“requires the parties to attend a mediation session. It does not require them to settle the dispute. The experience in many other jurisdictions, and the experience with B.C.'s Notice to Mediate for motor vehicle actions, is that mediation works even when a party is forced to mediate.”
This model “received widespread support” during the CJC’s consultation exercise.
The “opt-out” requirement of the Notice procedure, and onus on a recipient to formally justify their failure to participate, would help to address concerns that the English courts have been overly generous to date towards those who, as the CJC report puts it, ignore ADR and underestimate its potential benefits.
Referring a dispute automatically to a default system of ADR, with the court holding a residual supervisory role, is felt to be preferable, and the Notice procedure may be a promising way of achieving this. This would be a significant change to the court process.
However the introduction of a formal structure that supports the existing powers the courts have to sanction parties who unreasonably refuse to engage in mediation would strikes a workable balance between voluntary and mandatory participation in ADR.
[1] The Notice to Mediate (General) Regulation and the Notice to Mediate (Family) Regulation are embedded under the Law and Equity Act; the Notice to Mediate Regulation under the Insurance (Vehicle) Act; and the Notice to Mediate (Residential Construction) Regulation under the Homeowner Protection Act
[2] Source: Ministry of Attorney General (2004): Notice to Mediate (Family) Consultation Paper. Victoria: Province of British Columbia