Narrow circumstances where refusal to mediate is reasonable, says CJC report
The Halsey Guidelines for the imposition of costs sanctions should be reviewed and the circumstances in which a refusal to mediate is regarded as reasonable should be narrowed, a working group of the Civil Justice Council (CJC) has recommended.
In a report, ADR and Civil Justice, the working group also recommended that “however difficult it may be we should try to achieve a greater degree of Court intervention during the case management process as opposed to waiting until after judgment”.
It said the post‐mortem sanction under the Halsey system should be retained and applied more vigorously, adding that the jurisprudence was “ripe for review in light of apparent inconsistencies between recent Court of Appeal decisions”.
But the CJC working group said it did not support the introduction of blanket compulsion “in the sense of an administrative requirement that proof of ADR activity has to be provided as a precondition of any particular step”.
The report said the working group had also been keen to identify an acceptable mechanism under which a mediation could be triggered without the intervention of the Court, and that it thought that the British Columbia Notice to Mediate procedure was “the most promising option for a first step in this direction”.
The working group noted that the terms of claim documents, Court forms, pre‐action protocols and guidance documents already contained significant prompts towards ADR but recommended that these be reviewed to ensure that: (a) there is effectively a presumption that ADR will be attempted in any case which is not otherwise settled; and (b) that litigants are fully aware of or have been fully informed about the alternatives to litigation.
The working group’s recommendations also include:
- the use of a judicial-ADR liaison committee;
- increased public awareness of ADR;
- peer mediation in schools;
- increased law faculty and professional training; and
- a new website to act as a single umbrella source for information about ADR.
Work has already commenced on the creation of the judicial-ADR liaison committee, which is intended to play an important oversight role in the area. The committee will report to the Master of the Rolls, Sir Terence Etherton, as the Chair of the CJC and head of Civil Justice in England and Wales.
The group’s chair, William Wood QC said: "These are not problems with single or simple answers. I am indebted to the Working Group for the time and effort that has gone into this report. We have done our best to set out what seem to us the most promising options for the future. We are particularly pleased that our proposal for continuing liaison between Judges and ADR professionals is already being acted upon by the Master of the Rolls."
The CJC fully endorsed the report at its last meeting.
