Previews of 2022: The Past, Present, and Future of (A)DR in England and Wales

For years jurisdictions around the world have embraced Cloud-based platforms to deliver Court services and ADR solutions.  Meanwhile those of us in England and Wales (E&W) have looked on seeming helpless as initiative after initiative in the UK failed to deliver the benefits of that stalwart of 20th century technology: e-filing.

In the late 1990s we embraced Lord Woolf’s insistence that the benefits of his reform of civil justice could not happen unless it was all delivered using efiling with ADR first and litigation “as the last resort”.  Nevertheless his reforms arrived with nothing delivered online and barely any ADR for the 2.1m civil cases issued annually in E&W.  In 2006, about the time that many centralised and decentralised State Courts in the USA were beginning to set up efiling, we in E&W also expected to enjoy modern technology with our Electronic Filing and Document Management system (EFDM).  The Treasury even “ring-fenced” £60m to pay for it.  We were all set to fly!  But then – BAM! – the Treasury pulled down the fence, the funding and the brilliant EFDM system, a system that would have been the envy of the world.  Nothing happened until 2012 when I was asked by Senior Judiciary to build a Platform for the courts.  That Platform evolved into the first bespoke platform in E&W for managing ADR cases: DisputesEfiling.com (DEF).

Meanwhile divorced from modern technology conciliation and mediation was introduced for Employment, Family finance and children disputes and for issues concerning children with special educational needs and disability.  Those initiatives met with success but still none of those ADR processes were managed online.  ADR practitioners coped with relatively low numbers of cases by using 20th century technology of email, paper and the telephone.

In 2010 the Centre for Effective Dispute Resolution (CEDR) undertook their biennial audit of mediation which reported barely any mediation taking place in civil and commercial disputes (no more than 6,000 cases per annum that year) and all of that activity managed offline.  The low level of mediations in E&W should be understood in the context of 1,616,752 civil claims issued in 2010.

By 2016 NHS Resolution (the agency responsible for managing clinical negligence claims against the UK’s National Health Service) decided to explore whether mediation could resolve some of the 12,000 claims it received every year.  A pilot scheme was set up to divert a few cases to mediation.  Unsurprisingly mediation was a success.  That Pilot became permanent and a panel of mediation providers was established and has enjoyed further success.  From December 2016 to March 2019, 606 mediations have taken place.  Before a sense of achievement rushes to my readers’ heads please bear in mind that those 606 mediations represent 2.1% of the 28,000 claims issued in the same period.  Nor are any of those mediations managed by a dedicated platform capable of catering for the unique processes of mediation as well as delivering data driven insights to power further reform.

In December 2018 DEF was asked by NHS Resolution to introduce a pilot of a dedicated platform for those mediations.  The DEF Pilot ran through 2019 and encountered the usual issues delaying technology adoption.  These stem, largely, from lawyers preserving the status quo and the anxiety of mediators that they may lose work by introducing modern systems.  Nevertheless the pilot DEF undertook for NHS Resolution gave great insights and informed the way the DEF Platform pivoted toward mass claims developing an even smoother User Experience to maximise the efficiencies that 21st century technology delivers.

Re-treading the rather gloomy path of ADR in E&W and online management of ADR is nonetheless a path to understanding the truly radical nature of the changes that have begun to take root in E&W since 2019.  History may come to regard 2019 as the year the practice of ADR began to transform in E&W.

For example, in 2019 (the same year DEF struggled to persuade some to use an online Platform to manage clinical negligence mediations) the Court of Appeal decided (in Lomax v Lomax [2019] EWCA Civ 1467) that the Civil Procedure Rules could mandate ADR by requiring parties to use neutral evaluation.  By February 2020 a Judge called Geoffrey Vos was calling for the same approach to apply to mediation in McParland v Whitehead [2020] EWHC 298 (Ch).

Thus in January 2021 when Geoffrey Vos was elevated to the office of one of the most powerful Judges in E&W (as Master of the Rolls, the MR) the stage was set for much more ADR and much greater integration of ADR in civil justice.

These are the ways things have begun to move:

First things first, ADR is no longer a thing!  We now call ADR – Dispute Resolution (DR).  Hence in E&W we recognise this change by writing the abbreviation ADR as (A)DR.  I am not completely taken by surprise by this change as I was calling for “Alternative” to be dropped as long ago as February 2018 in my speech at the Civil Justice Council’s ADR Review Workshop.

Second – in 2021 we were treated to a number of speeches by the MR presaging the delivery of access to (A)DR via a Digital Funnel in which, it is planned, will be found resources to identify the right dispute resolution channel for each case.  Lawyers, neutrals and LegalTech providers have all been urged to get on board with this zeitgeist.

Third, there is to be an Online Procedure Rules Committee introduced by an Act of Parliament covering not only civil justice but also Family and all the Tribunals.  The Tribunals present an interesting challenge as some of them have never sat; for example, the Antarctic Act Tribunal.

Fourth, since as long ago as 2004 practitioners understood compulsory ADR was not lawful following a case called Halsey, which said that but which many practitioners believed was wrongly decided; including at least one of the Judges who decided Halsey.  Confused?  In June 2021 the Civil Justice Council published a report finding that compulsory (A)DR was now lawful and that, as many suspected, Halsey was wrongly decided after all (well, that only took 17 years) leading to a widespread expectation of mandatory (A)DR throughout Civil, Family and Tribunal jurisdictions.

Fifth, a major Call for Evidence about Dispute Resolution published in August by the E&W Ministry of Justice has the support of not only Senior Judiciary but also the Government.

Sixth, in November 2021 the Civil Justice Council published an Interim Report and consultation about making (A)DR a mandatory step in pre-action for all but urgent cases.

Why so much in such a rush?  There’s the Backlog of civil cases which was significant before the Pandemic.  With COVID the Backlog has become much, much worse.  A nasty situation DEF identified in a White Paper published in July 2020.

Whilst all of this has been going on the Courts are making bolder decisions about requiring (A)DR to be used to avoid disputes.

Backlog clearance? Judicial legacy?  Necessity the mother of invention?  Whichever way it’s cut – this job of more (A)DR and much more online management of (A)DR is the job that gets done in 2022.

From my whistle-stop tour of the events of 2021 I hope readers can see how big 2022 promises to be for the olive wand of Justice in E&W and the practice of (A)DR.  Perhaps not bigger than 1875 (when we fused equity with the Common Law and the Courts were shaken up) but, maybe, at least as big as 1875.

Who knows?  History will judge.  God willing, we may judge some of it in January 2023!

                       

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 >