Encouraging ADR: Civil Justice Council publishes final report

An interim report was published in October 2017, which we commented on here. At the time, our principal concern (and that of many other practitioners and commentators) was that the Working Group was considering the option of making mediation compulsory – i.e. introducing an administrative requirement for proof of ADR activity as a pre-condition of taking any particular step in the litigation. Happily, any such compulsion is now off the table.

In its final report, the Working Group expressly reflects on responses to its interim report noting that, “There was no or very little support for anything approximating to blanket, compulsory or automatic referral to mediation.” One of the key issues that respondents repeatedly brought up was the question of timing: the optimum timing for mediation may vary, meaning that a compulsory, pre-set mediation deadline was bound to be insensitive and inefficient. The final report expressly confirms that the Working Group does not support blanket compulsion.

Also in its final report the Working Group addressed three distinct (but related) challenges, being: the (1) awareness; (2) availability; and (3) encouragement of ADR by the Government and courts. The final report makes 24 recommendations on these three issues.

Perhaps the most interesting recommendations for parties to commercial litigation and their lawyers relate to the question of how the courts should encourage and incentivise parties to use mediation and other forms of ADR. Key conclusions include recommendations that there ought to be:

• a review of claim documents, court forms, pre-action protocols and guidance documents to ensure that there is effectively a presumption that ADR will be attempted;
• an urgent review of the Halsey guidelines for imposing costs sanctions to narrow the circumstances in which a refusal to mediate is considered reasonable. Currently the list is too generous to the refusing party;
• a greater degree of court intervention during the case management process (i.e. when decisions to use or not use ADR are being taken) as opposed to waiting until after judgment;
• the retention and more rigorous application of the post-mortem cost sanction under the Halsey system;
• and in the medium term, introducing a mechanism which will see parties engaging in ADR through the “Notice to Mediate” system presently in use in British Columbia. If one party formally invites the other to mediate, an established route into mediation will be triggered; if the parties do not agree on a mediator, one will automatically be appointed from a court-approved roster.

Among other suggestions, the report also recommends setting up a judicial-ADR liaison committee so that ADR professionals and Judges can meet to monitor the role of ADR and a new website to provide an online “one stop shop” for information about all the different forms of ADR to increase public awareness.

The final report specifically “does not purport to describe a perfect end-state for ADR or its role in the Civil Justice System.” Certainly the Working Group seems to be striving for a British Columbia style system in which court-based mediation is culturally normal, with little or no satellite dispute about the fitness or appropriateness of a given case to mediate. Many of the recommendations may seem overly interventionist or even unnecessary to litigation lawyers well-used to the various ADR tools available and the clear benefits they bring to helping to unlock disputes. However, take up is not consistent and within our system we have a significant number of litigants acting in person. Therefore, on balance, we see a benefit in increased intervention and can see the attraction in revisions to court forms or guidance to make ADR very much part of the system. Ultimately it remains to be seen how many of the report’s suggested recommendations are adopted and what practical/cultural effects any reform has.