As many will know, in England and Wales (E&W) since 2015 we have been digitising our Civil, Family, and Tribunal jurisdictions. It has been funded by our Government to the tune of £1.4bn ($1.8bn) and a further £200m ($255m) in November 2021. The project to digitise existing paper processes is well-advanced although not as advanced as in some US States which digitised in 2006-2007.
E&W also has a plan (again from 2015 thanks to an ODR Working Group chaired by Richard Susskind) to digitise the pre-action space reflecting rules about how to prepare cases (Pre-Action Protocols (PAPs)).
The latest iteration of these ideas involves digitising PAPs and integrating mediation within them. As many readers will be aware, mediation or other forms of ADR have been an “expectation” of the Courts in E&W for many years, since the time of Lord Woolf at the turn of the century in fact. Under the current plan for “integration” read “mandatory”. This compulsion (which I know will be a big no-no for mediation purists amongst readers) is proposed to be brought about, not by wielding a big stick (although that’s available), but by subtle nudges and incentives. For example, by providing that if mediation is undertaken in pre-action there will be no obligation to undertake mediation post-issue. Thus, enabling the lawyers to give full throttle to inter partes bloodletting. However, nothing that has been proposed will stop people from mediating post-issue.
Any failure to “engage meaningfully” (whatever that might mean), is proposed to be visited early in proceedings by costs or other sanctions including the striking out of claims or the staying of defences/entry of judgment. Draconian stuff which serves to concentrate Attorneys’ minds on mediating early.
This new regulatory regime creates a boom for mediators in E&W as we estimate there will be ca 1.6m cases requiring mediation beginning October 2025. This is our “core estimate” – the market is new and untested anywhere in the world so the actual figure could be significantly less, or more. DisputesEfiling (DEF) has been recruiting mediators for some time in collaboration with our mediation partner ADR-ODR International.
The new regime was to be supported by a so-called single-entry point being a Cloud-based platform providing an intuitive interface for citizens to understand their issue and offering different pathways to resolution. For example, ad hoc negotiation, neutral evaluation or mediation, amongst others. The Law Society of England and Wales were so keen on the idea they published a Green Paper in October 2023 saying that the single-entry point “must” be the cornerstone of the new digitised system. Their emphasis is understandable as Tier 1 would signpost users to their members.
Their focus on the single-entry point, or Tier 1, is understandable and we expected there to be a significant reduction in the number of mediations because of ad hoc negotiation prompted by Tier 1. Nevertheless, there would still be plenty of mediations for DEF’s growing mediator army to undertake.
Then out of the blue, on 30 November 2023, the Deputy Head of Civil Justice in E&W, Sir Colin Birss, gave a speech in which he announced that, despite the widespread expectation of almost 7.5 years that there would be Tier 1, that was not happening. The context and consequences of this volte-face lie between the Charybdis and Scylla of Timing and Funding.
In E&W we have an enormous Backlog of civil cases that is growing more profound and more pernicious by the day. That must be cut. Subjecting everything to mediation in pre-action will do that as we estimate most of those 1.6m cases in pre-action will settle – meaning they will not issue – meaning there will be (a lot) less work for Attorneys from October 2025 onwards.
Building Tier 1 requires time that the Busting Backlog imperative does not permit. It also requires funding that the E&W Ministry of Justice does not have either. Already out of money for digitisation the MoJ’s budget for digitisation projects was cut by the Treasury by £28m ($35.6m) in November 2023.
This is a dramatic change of approach, announced in a speech to a specialist professional association (the Competition Law Association) and barely reported in the Legal Press. The consequences will be profound for the Legal profession, mediators and citizens.
From DEF’s perspective we are hiring (a lot) more mediators.
Carrie Menkel-Meadow talks about the trends in mediation and the good things that are happening plus the dangers one of which is that the practice does not get co-opted.By Carrie J. Menkel-Meadow
The following excerpt from the PBS Benjamin Franklin webpage, Citizen Ben, demonstrates the wisdom of Lax' and Sebenius' advice that every successful negotiation requires moves away from the table to set ...By Victoria Pynchon