Earlier this month I attended the Civil Justice Council which held a workshop to discuss the interim recommendations and responses submitted in December 2017 as part of its ADR Consultation. The various responses are now on the CJC website.
A summary of 26 papers and thousands of words: broad support for more ADR and the tools to support that but tempered by "ain't broken / don't fix it" concerns of many lawyer practitioners in respect of the many many instances where a settlement is achieved by negotiation / RTM / JSM. Allied to those concerns are those about the additional costs and process issues that arise if every case is to be mediated.
A contrary argument is strongly reflected be the experience in Employment Tribunals of mandatory involvement pre-issue by ACAS and of the cost / benefits of Judicial Mediation. Further evidence is to be submitted by the end of March and a Final Report from the CJC Working Group is expecteted in the summer.
What is the call on Mandatory Mediation (the CMC response and flowchart provides a useful briefing)? Perhaps a pilot in certain areas of dispute such as smaller probate issues or "neighbour" disputes which could be picked up by the MoJ review of LASPO which is itself due for publication in the summer - though the hint from the latest Lord Chancellor seems to be that timing might slip.
I may be proved wrong but the direction of travel seems clear: more ADR (and in this respect see the proposals on the "Online Court" proposed by Briggs LJ) not less.
9 Oct 2019
Tactics following Court of Appeal mandatory ADR order
Paths to settlement will vary but parties will also need an ADR strategy from the outset.