Lord Justice Briggs - Taking the "A" out of ADR

Lord Justice Briggs - Taking the "A" out of ADR

Frances Macdonald

Frances Macdonald

Member of DASLS Mediation Sub-Committee


LORD JUSTICE BRIGGS - MEDIATION TO BECOME PART OF THE CULTURE OF LITIGATION

TAKING THE "A" OUT OF ADR

Last summer Lord Justice Briggs completed a review of Civil Litigation including the use of Mediation to resolve disputes. Following his review LJ Briggs gave a speech to the Chartered Institute of Arbitrators in September 2016 upon which this article is based, concentrating on his review of Mediation.

 

LJ Briggs Review of Mediation showed that the real gap in Mediation and ADR use was in cases of a value of £10 to £200 thousand in particular in personal injury and clinical negligence cases. The review found that (unsurprisingly) there had in fact been a rise in mediation following the recent substantial court fee rises.

 

LJ Briggs concluded that there needed to be a litigation system that was accessible to litigants in person or with minimal help from lawyers in cases up to the value of £25 thousand. This would include rules being kept simple.

 

LJ Briggs proposed 3 main stages:

1. Stage 1 – in which details of the case would be inputted onto the online system explaining the case and with the opportunity to upload key documents and evidence. The online system will prompt them to explain the case in such a way that the Court can ascertain the key points.

 

2. A resolution stage – This would be led by a Court office who could be a “Case Officer” or a legally qualified ‘Case Lawyer”. The Case Lawyer would not be a Judge.

 

The Case officer of Case Lawyer would suggest one of the following options as appropriate:

 

a.  Short telephone or online mediation in simple cases – including newly emerging forms such as automated bidding

 

b. An Early Neutral Evaluation (ENE) by a District Judge

 

c. Arrange a modest cost private mediation in a Court centre

 

d. A full day private mediation in higher value, difficult or emotionally charged cases

Although the above suggestions would not be compulsory LJ Briggs’ aim is for mediation to become the cultural norm.

He talks about taking the “A” or Alternative out of ADR.

 

3. If the case does not settle the Case officer would refer the case to stage 3 to be determined by a District Judge either by telephone, video or traditional methods.

 

Some litigators may understandably be worried how these proposals may affect their practice in terms of profitability and client numbers. However, there are positives to be found. If the Stage 2 mechanism is utilised it is likely to mean settlement is achieved more quickly. This will lead to more contented clients and better cash flow. A more contented client is more likely to become an established client seeking advice from the firm’s other practice areas. It may be easier to persuade opponents to mediate or settle prior to issue if they know this will be the first stage after issue anyway. Mediation can help to repair relationships in the case of people needing to maintain a relationship after the Court case e.g. contentious probate, neighbour disputes, business disputes. It is an extremely useful tool where the dispute has become entrenched and can help to break deadlock. The mediation agreement is confidential.

 

DASLS Mediators are local so we can cut the cost of travel for you attending the mediation

 

The mediation can take place at one of the party’s lawyer’s offices to cut the costs of venue hire. Where appropriate we can offer telephone mediation.

 

We are happy to offer a free visit to your litigation departments to explain how your clients can benefit and make the most out of mediation. Please do contact Tony at DASLS office,tony@dasls.com if you would like to arrange a visit. Our mediator profiles can be found at mediation

 

Frances Macdonald

20 February 2017

 

 


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