England & Wales (finally) Embrace Mediation

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In England and Wales (E&W) we are about to put hundreds of thousands of cases through ADR. 

Endless hesitation and some Court decisions delayed the widespread adoption of ADR in England and Wales (E&W) for decades.  However that is about to end as mediation/ADR moves into the mainstream. 

1. Terrible Tribunals

In May 2023 Tribunals had a Backlog of 143,844 cases – almost a third are labour disputes.  Exasperation with the Backlog and the chronic shortage of judges is not mitigated by the recent decision of E&W’s Ministry of Justice to “pause” the roll-out of a much needed IT system for the Tribunals.  Consequently paper files go missing and adjournments are the norm due to missing judges and/or missing files. 

Solution?

Parties may be required to attend before a judge at a meeting called a dispute resolution appointment.  Unlike judicial mediation, this will occur later when a more informed evaluation of the merits of the case can be given by the judge. This appointment would be held on a non-consensual, confidential, without prejudice basis for up to 3 hours.  The judge conducting it would have no further involvement in the case if it did not settle.

The idea is to remove from hearing lists those cases capable of settlement to enable other cases to be put into the list.

Fly in the ointment?

This initiative could be counterproductive.  Judges conducting dispute resolution appointments will be unable to hear the case.  Given the chronic shortage of judges this attempt to accelerate case progression could have the opposite effect.

• Small Claims are Slow Claims

In the Small Claims system (for cases claiming a sum up to £10,000, about $12,700) it can take a year to reach a first hearing.  Due to the much-needed modern IT system not yet being end-to-end the cases transfer into the paper system leading to hearings being adjourned because files and/or judges are missing as there is, yet another, chronic shortage of the District Judges that hear these cases.

Solution?

Compulsory mediation of claims up to £10,000 by Ministry of Justice employed mediators using telephone mediation for up to an hour (with flex to spend longer) with the parties who never meet or speak with each other.  The Mediators do not see the case documents.

Government say this will “positively impact” (whatever that means) up to 92,000 cases.  Expect this to be in force in the next 12 months and later rolled out to higher value claims via private sector mediators.  Providing a much-needed boost for the mediation sector. 

An earlier version of the scheme saw 56% of mediated cases settle.

Fly in the ointment?

Some argue that the mediation offered is not true mediation.  The good settlement rate achieved suggests parties do not find that an issue.

• Mediating cases early

Compulsory pre-action mediation managed online is intended to alleviate pressure on the courts by settling most cases before they issue and thereby avoid problems caused by “paused”/unfinished IT systems and shortage of judges. 

This reform will bring mediation managed online by private mediators to all civil, family and tribunal cases in the pre-action phase.  This will be a global first.

Pre-action mediation will be a new market for mediators and lead to the transformation not only of mediation but also the way in which mediation is delivered.    

Flies in the ointment?

Numerous: Public Legal Education, the number of mediators required, the framework for the platforms managing the process online, creation of a first tier in which cases are triaged online with resources enabling self-driving litigants to understand the best resolution solution.

The only thing we have to fear is fear itself, right?

• Churchill v Merthyr Tydfil County Borough Council

Does an internal complaints process amount to ADR?  That is one of the questions thrown up by an infestation of Japanese Knotweed in a small town in Wales. 

Should Mr Churchill have exhausted the Council’s complaints process before issuing proceedings?

This fight for the future of mediation in E&W arrives in the Court of Appeal on 8 and 9 November 2023.  Watch this space!

E&W’s embrace of mediation has been building for some time, think more Constantine than a Damascene conversion.

Almost 50 years after Professor Frank Sander of Harvard Law School first explained the concept of the multi-door courthouse in April 1976 E&W might finally catch up with our American cousins and many other jurisdictions e.g. the Lagos State Courts in Nigeria.  Better late than never.