ADR at a turning point?

In December 1997, I sat in a committee room at the House of Lords with Peter Burnett-Hitchcock, Suzanne Burn and other representatives of civil justice users to argue for the establishment of the Civil Justice Council. That was despite the vehement opposition of the Lord Chancellor’s Department (as it was then known). Our success that day played a part in enabling the council – one of the greatest reforms of civil justice in the 20th century – to become reality.

Just over 20 years on, I sat in another meeting room, but this time at an event hosted by the council. As the body moves into its second decade, it is tackling the big civil justice policy issues that challenge our society today.

In autumn 2017, the council published an interim report about the future direction of ADR provision in England and Wales. The review, chaired by William Wood QC, is groundbreaking for making the use of online platforms a central feature of the reform of ADR.

Responses were required by 15 December and a workshop was convened on 6 March this year to obtain practitioner and service provider views en route to a new approach to ADR in the 21st century. About 70 delegates attended, representing not only the judiciary, practitioners and mediators, but also service providers, NHS Resolution and HMCTS.

Central issues for the review and some of the points made during the workshop are worth airing here.

Where is the unmet need?

• Particular areas may be singled out such as:
• Clinical negligence – building on the existing NHSR Mediation Pilot but including arbitration. And, following a significant intervention by Andrew Ritchie QC, separating liability from quantum to facilitate earlier resolutions.
• Boundary and similar disputes.
• Trust and probate-related issues.

The controversial decision to omit arbitration from the scope of the review

• Many voices spoke up for including arbitration. The impression was given during the workshop that arbitration will be brought within the review in an appropriate form suitable for the lower-value claims which were in focus.
• That may only be for claims worth less than £25,000, such as the PIcARBS’ scheme for personal injury and/or clinical negligence.

The place of online solutions to enable ADR

• There is a growing understanding that the tsunami of LiPs using the system after the increase in the personal injury small claims limits in April 2019 can only be accommodated by an online solution.
• That understanding was matched by a growing sense that the Online Solutions Court will not be ready and that a privately funded platform will be needed to manage the workload supported by an effective chatbot or similar program.

Should ADR be compulsory to change culture and take-up?

• Whatever delegates might believe on this thorny issue (and there were many asking for compulsion), it was made clear that the Civil Procedure Rule Committee was implacably opposed to compulsion.
• Attention was drawn to the Claims Portal, which is not compulsory, but its governing protocol speaks only of an expectation that it will be used.
• That great expectation sees more than 400,000 claims resolved in a form of ADR every year.
• This led to strong calls for any such approach to be supported by a cloud-based platform and a recognition that, with funding for the HMCTS falling off a cliff next year, only the private sector can provide a such a portal.

There were no decisions but plenty of food for thought served up to the members of the review. Final submissions may be made via cjc@judiciary.gsi.gov.uk on or before 31 March 2018.

Tony Guise, a former commercial litigator, is a director of eARB Ltd