More Mediation in England/Wales

As the well-informed readers of Mediate.com blogs will know, in 1976 Professor Frank Sanders first advanced the idea of a multi-door courthouse (MDCH).  This is the idea that disputes could be solved in different ways – such as a trial or mediation, for example.  The catchphrase is: let “the forum fit the fuss”.

The idea of the MDCH was devised to bust the case Backlog afflicting US courts in the 1970s.  Since then MDCH has gained currency across the globe. Except in England and Wales, but that is all about to change.  That this change has taken nearly 50 years to even begin to take hold says less about the time it takes for ideas to cross the Pond and (much) more about the reluctance of English and Welsh lawyers and Judiciary alike to embrace ADR.

On 1 October 2024 new rules come into force for all civil cases worth more than £10,000 and require Judges, when setting a case timetable, to consider: 

“…whether to order or encourage the parties to engage in alternative dispute resolution.”

The new rule follows the decision in November 2023 of the English and Welsh Court of Appeal in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ. 1416, link here: Churchill.APPROVED JUDGMENTS (judiciary.uk).

Overturning the past 20 years of jurisprudential orthodoxy the three Judges held that the Courts could order parties “to engage in ADR”. 

Suddenly lawyers are asking themselves what does it mean to engage in ADR? What shall I say in a directions meeting when I am asked – what have you done about ADR?

As if to answer that question, the Court of Appeal said, at para 65:

“The court should only … order the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.”

So now we understand that ADR is, or at least, what that type of ADR is which is capable of being the subject of an order to engage in ADR in England and Wales!  Compellable ADR must meet Three Tests:

·       Fair

·       Quick

·       Reasonably Priced

Beyond that the Court of Appeal did not go, very much or at all.  The issue at the heart of the appeal (can Merthyr Tydfil Council’s Internal Complaints Policy be ADR) was never answered because the Grounds of Appeal, surprisingly, did not raise that point. Thus, we have satellite litigation to await in order to understand the meaning of fair, quick and reasonable pricing. 

I believe those questions may be answered like this:

Fair

The process must be independent – so ruling out processes like that at the heart of the Merthyr Tydfil decision: an Internal Complaints Policy under which the side about whom complaint is made decides the complaint.

Quick

6-8 weeks – a recent Review of ADR from the leading justice policy think tank, the Civil Justice Council, said ADR must finish within 8 weeks of a Letter of Response being received in the pre-action phase.

Reasonably Priced

Proportionately priced to the sums being claimed. A decision of the UK Supreme Court (UNISON v Lord Chancellor) held that any fees charged for access to the Court must be proportionate, see para 20.  The link to that decision is here R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) (supremecourt.uk).

In England and Wales ADR is finally capable of being ordered in the course of proceedings. 

Next year we may have near mandatory ADR in the pre-Court phase.  Recommendations from a high-powered Working Group set up by the Civil Justice Council would introduce an obligation to engage in ADR before issuing most civil proceedings.  This will be delivered by private sector mediators.  A Golden Era for mediators is at hand.

To meet the “quick” test will require many more mediators but offers, for the first time in England and Wales, the prospect of a career as a genuinely full-time mediator.  

Pre-action ADR is likely to settle 80% of all disputes that would otherwise have been issued in Court.  Presenting a challenge for lawyers whose business model depends on trials.

All this must look curious to US eyes where ADR was embraced long ago.  England and Wales is slow to change and then not always sure we should be changing but, somehow, we always get there in the end.  

Tony Guise

For thirty years, Tony Guise practised as a solicitor specialising in commercial litigation.  For 22 of those years he was involved in the major civil justice reforms in the civil justice system of England and Wales as President of the London Solicitors Litigation Association, the founder of the Commercial Litigation… MORE