By Terry Renouf, Renouf Mediation
(Estimated reading time: 2 minutes, 59 seconds)
As we emerge from lockdown restrictions litigators should carefully note a speech on 26th March 2021[1] by the new Master of the Rolls, Geoffrey Vos at Hull University. In this speech he built on recent judicial thinking that parties want a resolution of their dispute rather than an expensive and, until judgment, uncertain adjudication.
He explored how he intends to ensure that parties find those resolutions and how Courts will assist them to do so. His starting point is that he believes “that almost every dispute has a sweet spot when it is amenable to consensual resolution.”
Alternative Dispute Resolution (“ADR”) in its various forms provides the mechanisms to achieve that but he believes that “Alternative” is a misnomer. His aim as the Head of Civil Justice is to ensure that “Dispute Resolution [becomes] an integrated process in which the parties feel that there is a continuing drive [writer’s italics] to help them find the best way to reach a satisfactory solution.”
It seems clear that the Master of the Rolls will build on Lomax v Lomax[2] (Court of Appeal), a case that just pre-dates the pandemic. It determined that a Judge may order parties to participate in Judicial Early Neutral Evaluation (JENE). Whilst that case does not determine whether a Court can order a mediation there are a couple of points worthy of note.
- Firstly, in the preface to the 2020 edition of the White Book Vos anticipated that “there may well be significant developments in the CPR’s approach to settlement.”
- Secondly, he has instructed and expects the Civil Justice Council to report to him “shortly” on cases where mandatory mediation is appropriate.
Clearly change is afoot.
There have also been numerous cases where both Claimants and Defendants have been subject to significant costs sanctions for unreasonable failures to mediate (See BXB v Watchtower, DSN v Blackpool and Wales v CBRE & Aviva).
Covid lockdown has also meant that, as well as Court hearings, mediation too has moved online offering a flexibility to clients that a physical mediation does not. Parties are no longer limited by geography and the need to convene in one venue on one day.
- There is more pre-mediation contact and preparation by the mediator and the parties: this itself is much more efficient as the “other” side is not waiting for another conversation to conclude.
- The parties are not limited to the mediation “day” itself: a mediation can be split into shorter sessions that can be quickly re-convened with attendees who need to be there as opposed to attending “just in case”.
Are you ready for the new environment?
As we emerge from lockdown many questions arise, including-
- Which of the various dispute resolution options are best for your client and for your case?
- What are the non-financial factors that are preventing resolution?
- Are Part 36 offers going to be sufficient?
- Can you say you have made every effort to find the “sweet spot” identified by the Master of the Rolls?
- Have the parameters around unreasonable refusal to mediate changed?
- Is your case going to be subject to mandatory mediation?
What is clear is that the Courts will look favourably on and assist parties seeking resolution and the option of online mediation hastened by Covid will provide the opportunity to achieve earlier and better settlements. Prior to their next Case Management Conference, lawyers will have to ensure that they have settlement strategies fit for the post-pandemic litigation environment.
[1] The Relationship between Formal and Informal Justice, Geoffrey Vos MR, Hull University 26 March 2021
[2] Lomax v Lomax [2019]EWCA Civ 1467
If you would like to discuss mediation in relation to a commercial dispute, please contact Matthew Pascall on 01483 514428 or by email to matthew.pascall@temple-legal.co.uk
