News Archive

Items which have previously appeared in our "News" section:

South Wales Court Mediation Scheme

The South Wales Court Mediation Scheme was launched in January 2004. Click on the link to download the documentation from the Court Service Website.

Court Schemes Report

A report on the court schemes by the Association's Chairman is now available.

Latest Briefings - the ADRG and CEDR Conferences

Government announces the formation of up to 40 new court based mediation schemes. This was announced both at the ADR Group debate in October and the CEDR Congress in London on the 20th November 2003. The Minister David Lammy who spoke at both Conferences emphasised the importance of bringing to the fore non financial remedies in successfully resolving disputes such as the Alderhey Hospital body parts settlement. The Government are at long last wedded to the concept of mediation being at the forefront of dispute resolution by reducing in absolute terms the numbers of disputes resolved through the courts. Hence the priority of expanding court based schemes. There are three basic areas where the government want to push mediation:

Awareness raising through publicity
Court based advice service
Running at least one mandatory scheme

It's the last one that causes most concern, although it will be interesting to see how mandating mediation will affect the results. Doubtless the governments commitment will be tested by how much backing it gives to providing an on site advisory service either using local mediators or by training specific members of the court staff. The DeCAff representative, Heather Bradbury, confirmed that £1.5 million would be made available to expand mediation centered primarily on Court related schemes.

Lightman LJ gave his views at the CEDR Conference by suggesting that judges should really impress on the parties the high risk of continuing with litigation. At in his Hirst v Leeming decision the burden of refusing to mediate is a heavy one and can lead to cost penalties. Similarly in Leicester v Coates a party withdrew from the mediation and a party who lost having failed to agree to mediate in Vivani v Vivani ended up paying indemnity costs. He outlines the general principles to be adopted:

A party refusing to mediate must say why in writing
Judges must understand that litigation ought to be a last resort
Judges should know if a party has 'failed to engage in the mediation process
It's this last one that causes considerable interest as it might very much impinge on the mediator's confidentiality agreement. Coleman LJ very much agreed and spoke specifically on the enforcement of mediation clauses.

Court Schemes were very much in vogue, with the CEDR Conference coinciding with a JSB conference of judges on such schemes. DJ David Cooke from Birmingham spoke about the success of their scheme for disputes over the small claims limit. Full details of this and other schemes are reported elsewhere in the News section. We can expect further developments in areas such as Housing Disrepair and Employment schemes, and our specialist groups of mediators in these areas are working on accessing schemes in the next 6 months.

User Groups were well represented at the conference. The NHSLA were confidently pro-mediation whereas the Treasury solicitors appeared fairly lukewarm. The representatives of the Society of LA Chief Executives and AVMA were really very positive in their desire to accelerate access to mediation. The solicitor handling the Alderhey mediation was particularly poignant in his support for the way mediation produced a solution that suited over 99% of the claimants showing the importance once again of the non-financial benefits.

Marketing Mediation and Regulation were areas that drew particularly heated debate. The Chair of ANM spoke on self help through working together within loose groupings of mediators. Most of the rest of the panel spoke from particular vested interests either from the major providers, the professions or the private providers standpoints. At least we were all agreed on the ethos of minimal regulation.

ADR Debate

It is expected that very shortly the court of Appeal will be making a key pronouncement on mediation in a case called 'Halsey v Milton Keynes General Hospital Trust'. It will cover the key areas of what powers the court has to stay litigation in favour of trying mediation and on the costs consequences refusing to mediate. If you want to see the debate, the submissions of the Law Society and the ADR Group are posted in the members section. The result of this important decision will be posted shortly as soon as we have heard from the Court of Appeal.

Insurance market sets up mediation scheme

In a drive to use mediation in insurance disputes Lloyds of London has launched a claims mediation centre. It has been set up by mediation provider InterMediation using a number of top City firms. The Chair of the Association of Midlands Mediators, Andrew Paton, calls the move to starting an insurance mediation centre in London as a major benefit to the insurance market.

Costs Sanctions Urged

Lord Phillips, the Master of the Rolls, urged Judges to punish Solicitors with costs orders if they do not comply with Alternative Dispute Resolution Orders. Speaking at the Inner Temple on the 20th April 2002 Lord Phillips said ADR was effective in keeping prices lower and the parties on trading terms. He praised the Commercial Courts' case management of ADR and said that District Judges need better training and resources to deal with it. This very much follows the ruling in Dunnett v Railtrack reported elsewhere, which saw a winning Claimant penalised on costs for failing to obey and ADR Order. Whilst his comments weren't restricted to ADR Orders, he saw the lack of use of costs sanctions by Judges as a reason to highlight this under use of Judicial powers. He reflected on the very positive mediation experience in the Commercial Courts where there was a significant increase in the numbers of ADR Orders. In the 88 cases monitored in the year up to July 2000, only 27 had failed subsequently to use ADR procedures following the issue of an ADR Order (LCD Research No. 1/02). Lord Phillips was clearly impressed that the majority of cases settled after the imposition of an ADR Order in the Commercial Court, and could see significant benefits in the wider use of ADR Order in all Civil Courts. (25.4.02)

European Green Paper on ADR

This was published by the EC Commission on the 19th April 2002. The purpose of the Green Paper is to initiate a broad based consultation of all those involved in alternative dispute resolution in civil and commercial law. It highlights the growing interest on ADR in the European Union in three particular areas:-

As a means of improving access to justice.
As a response to Member States' governments who produced legislation encouraging ADR.
It has been given political priority in the field of information technology disputes and web-based cross border disputes.

The initial report recognises the importance of the development of ADR throughout the EC and this paper is intended to make civil and commercial mediation a pivotal process in the way cross-border disputes are settled.

Take for example ADR in the context of EEC Court proceedings. It says that the Member States' Codes of Civil Procedure allow for Judges to make conciliation (as distinct from mediation) as a compulsory phase in the procedure, or "explicitly to encourage Judges to intervene actively in the search for an agreement between the parties". It quotes CPR Rules 26.4 and 44.5 that give UK Courts power to suspend proceedings and reduce costs recoveries, and gives similar examples elsewhere in Europe. It highlights that ADR is not the subject of regulations in the Member States retaining its voluntary status. It looks at the rather mixed history of conciliation in labour disputes and mediation in family law, and sets the task of seeing how Mediators in the EC should be regulated ie. whether such regulation should be done locally in the Member States or globally as a European Directive.

You really have to read through the Euro-speak to get a good flavour of this report. Take for example "any measure that might thus be implemented in line with this Green Paper and on the basis of the consultation should also respect the principles of subsidiarity and proportionality as set out in article 4" or "the appropriate instrument - regulation, directive or recommendation - should be selected according to the nature of the measures envisaged". Why they cannot use clear language remains a mystery. We expect the Green Paper to generate more wise words about comparative research into ADR between the different countries, and that might just result in some sort of Code of Conduct for certain types of ADR, particularly those that involve a cross-border element, to include E-commerce, trade and consumer disputes.

Comments on the Green Paper or requests for copies to: JAI-coop-jud-civil@cec.eu.int

Case Law Updates

UK Courts will not permit certain cases to go ahead without prior recourse to mediation. For details of the Court of Appeal decision in Frank Cowl v Plymouth City Council 2001 and the Master of the Rolls strong support of using ADR in appropriate cases in Dunnet v Railtrack 2001 see below.

Cowl v Plymouth City Council
Dunnett v Railtrack plc

Pilot Scheme Report Published - September 2001

The Leeds Metropolitan University report on the Leeds Mediation Scheme for the Lord Chancellor has now been published. Click here for a copy.

Mediation news

The Government says yes to mediation - 23/03/01 - Lord Chancellors website

Employment agencies encouraged to mediate - DTI Directive 22/06/01 - DTI Website

Press Announcement - 31 July 2002

The Lord Chancellor's Department has today issued a report to show how Departments have taken forward the Government's commitment to use alternative methods of dispute resolution (ADR) to settle its own disputes.

The information submitted to the Lord Chancellor's Department shows that in 48 disputes in various Departments a method of dispute resolution has been used or attempted since the Lord Chancellor announced the ADR Pledge in 2001.

The Lord Chancellor, Lord Irvine, said today: "Despite this apparently slow beginning I am encouraged by the genuine desire which Government Departments have shown to build on this commitment. From the evidence submitted to us I am confident that use of ADR will continue to increase in the next few years.

"The ADR Pledge is clearly being taken very seriously. It is also clear that there is growing enthusiasm for ADR within Government Departments. Many of them have embarked on significant progressive steps to implement training programmes and are undertaking awareness training in ADR, sometimes even with Government Lawyers training as mediators themselves to ensure that ADR is a fundamental part of their dispute handling process.

Over time, I hope that these annual returns will demonstrate the continuing increase in the level of ADR use."

Editors note

This report can be found on the LCD Website www.lcd.gov.uk The Pledge
Under the terms of the ADR Pledge, all Government Departments and Agencies have made the following commitments:
- Alternative Dispute Resolution will be considered and used in all suitable cases wherever the other party accepts it.
- In future, Departments will provide appropriate clauses in their standard procurement contracts on the use of ADR techniques to settle their disputes. The precise method of settlement would be tailored to the details of individual cases.
- Central Government will produce procurement guidance on the different options available for ADR in Government disputes and how they might be best deployed in different circumstances. This will spread best practice and ensure consistency across Government.
- Departments will improve flexibility in reaching agreement on financial compensation, including using an independent assessment of a possible settlement figure.
- Government Departments will put in place performance measures to monitor the effectiveness of this undertaking.

We are delighted that the Lord Chancellor is once again demonstrating the governments commitment to mediation. But wisdom is one thing in demonstrating how appropriate mediation and ADR generally can be in settling disputes, and integrity is another in actually putting into practice this pledge to use litigation as a last resort.

Clinical Negligence Developments

The Government's report last year highlighted the unacceptably high cost and sizeable increase in thge volumes of clinical negligence disputes even in the light of its own CPR protocal. The ANM special interest group or SIG on personal injuries and clinical negligence has held high level talks with representatives of the NHS Legal Services, the Medical Defence Union and the Federation of Insurance Lawyers (FOIL) on the one hand and the claimants representatives with the Action for Victims of Medical Accidents (AVMA) on the other. The talks were not aimed at creating a scheme in the near future but in assessing what the different parties wanted out of the Government's push towards using ADR more to resolve its disputes. There was a belief from the funders that the reluctance to mediate came more from the Claimant representatives rather than the Defendants. That is by no means the universal experience, but is a significant perception. The total volume of mediation at 23 so far were pretty dismal even by the standards of other sectors. There may be a reluctance to use mediation on the basis that AVMA considers that mediation isn't really appropriate for most clinical negligence disputes. But they do take a positive attitude towards a wider interpretation of ADR. Arnold Simanowitz, AVMA's longstanding Chief Executive, says that opportunities now exist to use mediation as a springboard towards developing new evaluative structures, and he sees an expanding roll for neutral assessors or gatekeepers*. They, he says, would be brought in at an early stage to sort out what course is appropriate. He is able to bring in another expert neutral if the case is complicated enough; having heard the parties, he then gives a preliminary view. There will be in evitable difficulties in agreeing on the identity of the assessor because of the split in the profession between Claimant and Defendant types. There is also the perception that mediation is in a glass bottle labeled 'Faciliatives Only' - this is too narrow approach, and ANM members consider that mediators have a wider roll to play than simply being there to encourage the parties to create their own solution. Most mediators have specialist evaluative experience which carefully combined with the mediators traditional roll could be an extremely useful combined skill to steer the parties towards either a settlement or a more refined process to achieve that settlement. Simanowitz's views about 'gatekeepers' may not be as wide off the mark as we might at first have thought in the light of the wider Government's interpretation of ADR.

*Source - Clinical Risk 2002-8

EU Green Paper on ADR

The Association believes that all UK based ADR bodies have a vital roll to play in bringing mediation onto the European agenda. The EU Green Paper published this summer is aimed at increasing the use of mediation in resolving cross border disputes. We see it as a much wider opportunity for the EU to recommend the use of mediation in all its contracts and negotiations in the same way as the UK government has done so in its OGC Guide to Dispute Resolution. They asked various bodies including this Association to comment by the end of October, and you can see our response by clicking here.

A fuller analysis of the EU position on ADR can be found in our archive section.

Government Dispute Guidance

The introduction of new ways to resolve contractual disputes between government departments and suppliers has been launched by the Governments procurement think tank the Office of Government Commerce. The guidance is published with the specific backing of the Lord Chancellor's office and is but one of a series of initiatives to promote alternative ways to resolve disputes that followed the governments pledge of March 2001 to involve ADR in all disputes wherever the other party accepts it. The guidance seeks to put into effect sound dispute avoidance and dispute management principles. Its interesting to note that the section on mediation also covers concilliation, which takes a mediators roll into using evaluative techniques as necessary. Litigation and arbitration are both to be used as a last resort and the dispute resolution routemap includes the full panopoly of Neutral Evaluation and Adjudication as well as Mediation and Conciliation.

See also http://www.open.gov.uk/Home/HOHome

The Association of Northern Mediators

Civil and Commercial Mediators in the North of England