By Terry Renouf, Renouf Mediation.
2018 saw much greater use of mediation both within the area of clinical negligence but and more widely. This reflects a trend identified in the CEDR Biennial Audit1 published in July 2018. Growth of 10% pa was confirmed and within that figure a 20% pa growth of “schemes” such as NHS Resolution’s Mediation Service.
2018 was also bookended by the Civil Justice Council Consultation of late 2017 and its report on ADR & Civil Justice2 published in December. The CJC, chaired by the Master of the Rolls, has accepted the Report’s recommendations which poses questions and recommendations to the professions on challenges around awareness and availability of ADR. This article considers some of the proposals that will affect practitioners in 2019.
Firstly, a couple of rejected proposals: neither MIAMs (Mediation Information Awareness Meetings, familiar to those in the Family Courts) nor mediation will be a mandatory step in the civil process.
Of the recommendations made, the Master of the Rolls has begun the appointment of a Judicial-ADR Liaison Group. Thus 2019 will see a review of many of the court forms, PAPs and Guidance Notes to ensure firmer language on ADR is used, that is consistent with a presumption ADR should be attempted.
There will also be a review of Halsey recalibrating and narrowing the reasons why ADR is inappropriate.
Consequently, practitioners should expect to see a wider use of “Fontaine Orders” on directions and more costs sanctions for unreasonable failure to use ADR. This may extend to provisional cost reductions made at interim or directions hearings.
April is too early for significant CPR changes, but October is more realistic. This may include a requirement of certification within the statement of case or in the directions questionnaire of the steps taken to discuss the claim, that litigation is acknowledged as a “last resort” and that lay parties are acquainted with other forms of ADR.
In the longer term we may see a “Notice to Mediate” process following the example of British Columbia.
Recommendations: negotiation is not enough. In 2019 it will be part of the solution, but Courts will be expecting parties to offer a resolution strategy. Practitioners should not doubt that the Court philosophy is to manage cases to resolution -not trial. A Round Table Meeting (RTM) is an acceptable solution, but you may need to demonstrate that it is the better solution. Do you prefer RTM or mediation? What does your client prefer? Does mediation facilitate an earlier resolution?
Predictions: 2019 will see more civil and clinical negligence mediations. The NHS Resolution Mediation Service has seen a remarkable acceleration in case numbers. The NHS Annual Report confirmed 189 cases settled by mediation to March 2018. By December 2018, within 8 months, the figure was 400 and my understanding is that referrals are accelerating. And more widely there will be CPR changes, case law and judicial pressure that practitioners will need to respond to. ADR will be notionally optional but ignored at considerable risk.
If you would like to discuss mediation in relation to clinical negligence with Temple Legal Protection please call David Stoker on 01483 514808 or email firstname.lastname@example.org.
1 – CEDR Eighth Mediation Audit; (10 July 2018)
2 – ADR and Civil Justice, Civil Justice ADR Working Group, Final Report (November 2018)