05 Aug Civil legal disputes and (A)DR – is significant change really coming?
There is a significant wind of change blowing in the way it is planned that civil law disputes will be dealt with in the future. This is likely to have a profound effect on they way in which parties, and their representatives, seek to resolve disputes.
In many cases it is likely that there will be a compulsory requirement to engage in methods of what, up to now, have been considered ‘alternative’ forms of dispute resolution before a case can proceed to trial. Parties will be encouraged to engage in a culture of resolution as opposed to litigation.
In recent months both the Master of the Rolls, Sir Geoffrey Voss, and the Lord Chancellor, Robert Buckland, have made significant speeches outlining this ethos. There is clear momentum gathering for change. The MOJ has just launched a ‘call for evidence’ on the topic – with responses due by late September 2021.
Recently, the Civil Justice Council, the body that advises the Master of the Rolls on potential changes to the civil justice system at his request, considered a fundamental development – whether parties to a dispute could be forced to engage in settlement discussions, and potentially penalised under court rules if they do not make such an attempt.
The CJC concluded that such a requirement and such a penalty would be possible – and would not infringe a party’s right to a fair trial. The compliance required would be to engage in dispute resolution discussions – not an obligation to actually resolve the dispute itself. This would be a development on the existing case law and Civil Procedure Rules.
So, what changes are planned?
Ultimately, the Master of the Rolls envisages one online funnel or portal as an entry point into which individuals and businesses will lodge details of their dispute. That funnel will provide various different options for resolution, with a potential of escalating the dispute once earlier processes have been completed.
This would include directions to ombudsmen in relevant areas where such processes exist, Alternative Dispute Resolution (ADR) – most often mediation, and litigation. There will be one point of data collection rather than overlapping processes -and if one avenue does not provide a resolution then the case may progress into another in a straightforward and speedy manner.
A further significant change is that ADR will be at the heart of the approach to civil justice, so much so that the Master of the Rolls foresees the removal of the ‘A’ from ADR in the way that it is traditionally regarded – so that its processes become central to dispute resolution strategy.
At one end of the spectrum, there would be an inclusion of processes such as regular prompts in online systems to settle a case, and the use of algorithms in lower value cases encouraging parties to ‘blind bid’ to identify possible overlap of an acceptable settlement sum. In other words in such cases there would be no judicial decision to decide who is right or wrong, but an emphasis on each party indicating a result that it can ‘live’ with.
In higher value cases parties have been encouraged to mediate their disputes for some time in a confidential and without prejudice process. Mediation often proves highly successful, with surveys consistently showing a settlement rate of around 75%. Such an approach invariably involves compromise if there is to be a settlement and does not involve a judge deciding the outcome.
This thinking is a central part of the Voss vision and the cultural change that will be encouraged and required of people involved in a dispute. While there will still be opportunity for cases that cannot be resolved to ultimately proceed to a decision by a judge, that will come at the end of a process when seeking mutual agreement will have been consistently encouraged. The penalty in not reaching such agreement may raise both parties’ risk substantially in an eventual outcome so as to make the choice of proceeding to an arbiter unpalatable.
Why are these fundamental changes being proposed?
There are several reasons.
First, a negotiated outcome often makes good sense and limits the time and cost of dealing with disputes to parties. Often disputes involve ‘shades of grey’ and may not be crystal clear. Entering into a protracted dispute can be a costly decision financially and even emotionally. A negotiated outcome can be more flexible and even preserve trading relationships.
Second, the improvement of technology means that there are more modern ways to communicate and use tools to cut through previously protracted processes. The new processes envisaged are entwined with the development of the online court that has been underway for several years.
Third, while there is an intention in government circles to spend money on IT to bring court systems into the modern age, this has been partly fuelled by the wish to close court buildings to cut costs. The experience of the Covid pandemic where courts and lawyers have had to engage in online hearings means that the genie is now out of the bottle, and a court system with less personal attendance than before is inevitable.
When will this all happen? Clearly setting up online processes and a change of rules and culture will take a little time. The impatience of the Master of the Rolls should not be overlooked though – changes are likely to come quickly.
This does not appear to be the latest in the line of intended changes to civil procedure that draw attention and then gather dust on the shelf. The Ministry of the Justice has just launched a call for evidence, closing in September to seek further input. The measure of agreement between senior judiciary and the government is significant and provides momentum.
Master of the Rolls March speech at Hull University – https://www.judiciary.uk/wp-content/uploads/2021/03/MoR-Hull-Uni-260321.pdf
CJC ADR report on compulsory ADR – https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf
MOJ call for evidence – https://consult.justice.gov.uk/digital-communications/dispute-resolution-england-wales-call-for-evidence/