Dispute Resolution for the ‘20s
By Terry Renouf, Renouf Mediation
(Estimated reading time: 2 minutes, 56 seconds)
The turn of the year, commencement of a new decade coupled with the early days of a new Government with a 5 year mandate is an opportune time to consider civil justice and dispute resolution in 2020 and beyond.
The Conservative Party manifesto was acknowledged to be a safety first platform offering no hostages to fortune. Voters were offered a national potholes strategy but very little about civil justice other that steps to limit vexatious litigation against the Armed Forces. Big spending commitments were made to the NHS and to expand the police – it therefore seems that there is little money available to reverse the challenges facing the Courts; ones which are clearly evident to Court users.
Those challenges, essentially of funding, create pressures for clients, lawyers and the judiciary. It is apparent that dispute resolution strategies, other than formal litigation, are sought
by clients and facilitated by the Courts and other stakeholders. ADR and mediation are part of the response to the shortage of judicial and court resources. Underlying growth in mediation has been of the order of 10% pa in recent years, with practitioners recommending mediation (and other ADR options) as they respond to client concerns about the expense, complexity and delays of litigation.
At a policy level the Civil Justice Council (“CJC”) supported the final recommendations of its ADR Group in December 2018. The first, and probably most important, recommendation was to set up a Judicial ADR Liaison Committee. Belatedly this has now been implemented with meetings in the final quarter of 2019 and the first quarter of 2020.
Further practitioner support for ADR is evident from the recommendation for mandatory pre-litigation neutral evaluation in low value clinical negligence claims made by the CJC Committee considering Fixed Recoverable Costs (“FRC”).
Such a change would not cost the Ministry of Justice (“MoJ”) much whilst earlier and more frequent resolution for parties will mitigate risk and legal costs. An early consultation must be anticipated as this recommendation will be attractive to the relevant Ministers at both the MoJ and Department of Health.
Similar arguments also apply to the FRC extension to most cases under £100k by value – as recommended by Lord Justice Jackson in 2017. The MoJ consulted in 2019 on the review with the response due by the year end but deferred by the General Election. The significance for mediation is that two specific recoverable costs allowances were recommended by Jackson LJ to encourage ADR/mediation.
The ADR “case of the year” was Lomax v Lomax, [2019] EWCA Civ 1467, where the Court of Appeal found that a party could be compelled to participate in a Judicial Early Neutral Evaluation. Whilst the CA was keen to emphasise that the decision only related to ENE it does seem to presage a much anticipated review of the leading case of Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002. This leading case on mediation will be 16 years old in 2020 and ripe for review against a background of a much changed civil process.
Policy change and judicial intervention through case law and CPR changes will encourage mediation in 2020 and beyond. Process change is of course important to understand but by far the most important reason for embracing the change is the client benefit: the opportunity for earlier risk assessment, mitigation and settlement benefits every party involved in a dispute. ADR and mediation is good for clients and good for business.
If you would like to discuss mediation in relation to clinical negligence with us please call David Stoker on 01483 514808 or email .
