Is Mandatory ADR/Mediation Coming?

At Whitestone Chambers all barristers are keen proponents of Alternative Dispute Resolution (‘ADR’) and mediation and can attend a mediation as advocate for the parties to put their positions forward strongly in negotiations or can act as mediators in disputes. Whitestone Chambers member Peter Causton, a fully qualified Civil Mediation Council Mediator who mediates civil or workplace disputes.

Last year there were significant developments as the Ministry of Justice moved towards greater compulsion to mediate. At present there is an obligation to consider mediation to resolve disputes but the penalty for unreasonably refusing to mediate is in costs at the end of a case. Several recent cases have emphasised that the Courts do expect parties to try to resolve cases through dispute resolution processes other than Court. The Master of the Rolls has expressed his support for ADR processes in well publicised comments.

At the same time, the jury is still out as to how far the Courts should go in making mediation compulsory. It is unlikely that parties in personal injury cases will be forced to mediate any time soon. In high-cost cases such as TOLATA, inheritance or contentious probate, or boundary disputes though there is a groundswell moving towards forcing litigants to at least consider ADR as part of the process and taking the “A” out of “ADR.”

The Civil Justice Council published a paper suggesting that parties could be compelled to mediate in August 2021, supported by the Master of the Rolls.

The paper sparked further debate about whether forcing people to mediate is a step too far.

In the paper it was suggested that making parties mediate does not breach their human right to a fair trial. It said that:

“ADR can no longer be treated as external, separate or indeed alternative to the court process. For our part, an order that is made requiring participation in ADR should be enforced and parties who fail to attend in breach of such an order should be sanctioned.“

The authors dismiss the argument that parties forced to use ADR will not resolve their dispute.

“Drawing together the strands, this commentary points to a number of potential concerns about the introduction of compulsory ADR. First, there is a risk it might not work, either because the parties are simply intransigent or because they do not know enough about it and are therefore unlikely to engage in the process. Second, at a more fundamental level, there is a concern that pushing more disputes into ADR undermines the value of the adjudicative system, which is the foundation on which the effectiveness any form of ADR ultimately relies.  In our view, these concerns are not decisive.”

They go on to conclude that compulsory mediation/ADR should be considered and that it would be an extremely positive development, particularly when it is low cost, saying that:

“We think that introducing further compulsory elements of ADR will be both legal and potentially an extremely positive development… We would make three specific observations:

  1. Where participation in ADR occasions no expense of time or money by the parties (as with answering questions in an online process as to a party’s willingness to compromise) it is very unlikely that the compulsory nature of the system will be controversial – as long as the ADR is otherwise useful and potentially productive.
  2. Judicial involvement in ENE, FDR and DRH hearings is proving highly effective and these are of course available free to the parties. Again, as long as those procedures seem appropriate for the particular type of case being considered and can be resourced within the court system, we cannot see that compulsion in an even wider range of cases will be unacceptable.
  3. We think that as mediation becomes better regulated, more familiar and continues to be made available in shorter, cheaper formats we see no reason for compulsion not be considered in this context also. The free or low-cost introductory stage seems the least likely to be controversial.
  4. Above all, as long as all of these techniques leave the parties free to return to the court if they wish to seek adjudicative justice (as at present they do) then we think that the greater use of compulsion is justified and should be considered”.

The report suggested that the starting point should be forms of ADR which are free or low cost.

It was also suggested that the test of unreasonable refusal to mediate established in the seminal Halsey case could be revisited or tightened up.

This was followed by the MOJ launching a Call for Evidence on Dispute Resolution from all interested parties about mandatory mediation. The Lord Chancellor, Dominic Raab also made comments supporting increased mediation in the family Courts and a free £500 mediation voucher scheme in family cases was extended.

They said that the Call for evidence is “the first step to understanding the current dispute resolution landscape, identifying what works well, what can be improved and to put this into practice. It is our ambition to promote non-adversarial dispute resolution mechanisms, so that resolving disagreements, proactively and constructively, becomes the norm.  We are keen to support people to help them get the most effective outcome and ensure they can access the most appropriate form of resolution, which may not be court.”

The outcome of the consultation is eagerly awaited in Spring 2022. It is a safe bet that there will be an increase in mandatory referral to mediation or ADR processes or an increase in judicial ENE in certain cases or a pilot of such systems. At Whitestone Chambers we are ready to embrace any changes that are introduced.

Peter Causton © 2022 Whitestone Chambers

Day v Womble Bond Dickinson (UK) LLP [2021]: Lawyers Using Covid-19 As An Excuse Should Now Be Cautious

Courts have recently decided to restrict Covid-19 as an acceptable reason for procedural failings where lawyers and law firms have failed to take reasonable steps to mitigate their shortcomings.

For example, in Day v Womble Bond Dickinson (UK) LLP [2021] EWHC 3236 (QB), the Claimant’s solicitors claimed that as a result of Covid-19, staff having been furloughed and many having been made redundant led to an increase in workload. This meant that the Claimant breached a court order by not applying to amend his Particulars of Claim by the required time (7 May 2020), and then applied for relief from sanctions and a time extension by application dated 4 September 2020.

While Deputy Master Toogood sympathised with the solicitor’s position, it was the firm’s responsibility to ensure there was adequate remaining staff to cover the work that needed to be done.

Moreover, the near 4-month delay was inexcusable and unreasonable especially as the Deputy Master noted that the Claimant’s solicitors pursued an application to the case to the Supreme Court – expressing that they were still able to work effectively. It was this lack of urgency that distinguished Day from Stanley v London Borough of Tower Hamlets [2020] EWHC 1622.

The Claimant’s solicitor contracting Covid-19 in early April 2020 was not held as a reasonable excuse for missing the deadline and delaying for 4 months.

Stage 3 of the Denton test from Denton & Ors v TH White Ltd & Ors [2014] 1 WLR 3926 was also considered: evaluate all circumstances of the case so the application is dealt with fairly. In this case, the Claimant failed to particularise his loss in the amended pleading therefore, over 9 years from the alleged negligence, the Defendant still did not know what case it had to meet. In all the circumstances Deputy Master refused the Claimant’s relief from sanctions and dismissed the claim.

The decision made by Deputy Master Toogood is in line with an earlier case during the pandemic: Boxwood Leisure Ltd v Gleeson Construction Services [2021] EWHC 947 (TCC). Here the Claimant’s solicitor made a diary error partly caused by remote working. Nevertheless, O-Farrell J held that it was still the solicitors’ responsibility to ensure deadlines were met despite the error.

Through these pandemic-related cases, it is clear that the courts have begun to harden their attitude towards procedural failures as a result of the pandemic which will most likely expose cases of solicitor negligence claims.

© 2022 Miss Mina Heung Whitestone Chambers.