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ADR and Mediation for the new Decade

Whiteboard with text written on including the words mediation, dispute and negotiation

By Terry Renouf of Renouf Mediation.

Terry Renouf

Alternative Dispute Resolution has throughout 2019 continued to develop with further changes anticipated in 2020. The CEDR Mediation Audit of 2018 reported 10% growth of civil mediations per annum with mediation “schemes” growing at twice that rate. The NHS Resolution Mediation scheme continues to demonstrate the vitality of such alternatives to litigation with 380 cases mediated in 2018/19[1] a 110% increase on the previous year.

Further evidence of a cultural change to the adversarial approach to litigation is apparent from the recommendations of the Civil Justice Council Report on Fixed Recoverable Costs in Lower Value Clinical Negligence Claims. Perhaps inevitably there was not a full consensus on all of the proposals but mandatory Early Neutral Evaluation before the issue of proceedings was fully supported by the cross section of practitioners forming part of the Working Group.

The views of practitioners echo judicial pronouncements and case law. The Online Court has a number of features encouraging parties to mediate. Speeches of senior judiciary similarly support ADR noting repeatedly that parties objectives are resolution of a dispute not a progression to trial. In August in Lomax v Lomax [2]the Court of Appeal took the view that Judicial Early Neutral Evaluation (JENE) was part of the Court’s case management jurisdiction and that parties could not object to an order for JENE. It is evident that further changes are likely as Moylan LJ noted in Lomax that “the Court’s engagement has progressed significantly since [the leading case on mediation] Halsey v Milton Keynes [3] was decided.”

It is also significant that the Judicial ADR Liaison Committee recommended by the Civil Justice Council ADR Working Group [4] in 2018 eventually met in October this year. It has many developments to consider but in 2020 will bring cohesion and co-ordination to the development of ADR and mediation.

The year 2020 marks a new decade with ongoing ADR developments in areas of law where it is well established and inroads into areas where it is less mature. The Ninth CEDR Mediation Audit (it is published biennially) will confirm trends. It seems very likely that there will be further interpretation of the leading case of Halsey which is now 15 years old. A new Government will no doubt consult and respond to the extensive recommendations of low value clinical negligence claims and changes to Rules will follow new case law and the work of the Judicial ADR Liaison Group.

In considering why these changes are taking place it is worth remembering the client perspective. The following quote by Helen Vernon, the NHS Chief Executive and is from the NHS Resolution Annual Report cited above:

“Mediation can deliver things which go beyond compensation, which is so important when we look at what our research tells us about why people pursue claims. It provides space and time for everyone to explore and understand what happened in all its complexity, to hear what can be answered and bring the conversation back to what matters to the injured person.”

Traditional methods will continue to resolve many, perhaps most, cases but the growth and further development of ADR and mediation offers litigants alternative and better outcomes. Those lawyers who respond and adapt to the ADR options as they develop will be offering their clients a better service and will in turn see their practices and client base grow in 2020 and beyond.

[1] NHS Resolution Report and Accounts 2018/19 published 11 July 2019
[2] [2019] EWCA Civ 1467
[3] [2004] 1WLR 3002
[4] ADR and Civil Justice, Final Report Civil Justice Council November 2018