Civil Mediation and

ADR in England and

Wales Dr Sue Prince

Associate Professor

ADR Definitions

Jackson ADR Handbook (2013) states that ADR

‘has no agreed definition’

Broadly defined in Civil Procedure Rules 2014: “a

collective description of methods of resolving

disputes otherwise than through the normal trial

process”

Characteristics found in other narrower

definitions such as ‘confidentiality’ and ‘voluntary’

might restrict different types of mediation.

Trends in ADR (civil): court

processes Civil Procedure Rules encourage mediation through cost sanctions – CPR

Satellite litigation on costs in mediation aims to encourage mediation in civil cases: Dunnett v Railtrack (2004), Halsey v Milton Keynes NHS Trust (2004), PGF II SA v OMFS (2013}

Court-based mediation in small claims cases (under £10,000)

SC cases where both parties agree to mediate are now automatically referred to SCMS (CPR 26.4A) since April 2014.

ODR in civil cases pre and post-issue – Civil Justice Council Advisory Group on ODR (Reporting 2015)

Trends in ADR (civil)

Ombudsman schemes show increased growth eg Financial Services Ombudsman

RTA PI Claims Portal - Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents: http://rtapiclaimsprocess.org.uk. £25,000

HMRC Tax Disputes – Pilot Project on using ADR to resolve large tax disputes considered a success (HMRC, 2013)

Government commitment towards resolving workplace disputes

CEDR Bi-annual Audit

0

1000

2000

3000

4000

5000

6000

7000

8000

9000

10000

2003 2005 2007 2010 2012 2014

1800

2500

3400

6000

8000

9500

CEDR Audit Reports - numbers of mediations

number of mediations

This graph shows the total number of mediations taking place in the

UK as estimated by CEDR. This includes commercial disputes which

may not be part of the court process – not analysed by value of claim.

Ombudsman Service

Web of public / private & voluntary redress

schemes for different complaints eg financial

services, furniture, legal services, etc

Generally well-received but gaps and overlaps in

provision

‘Complaints helpdesk’ proposed by BIS in line

with EU Directive on ADR & ODR (2015) - draw

services together which affect complaints

individuals have with a business

Financial Ombudsman

Service

Shows the increase in cases going to FOS on a yearly basis

0

100000

200000

300000

400000

500000

600000

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

25000 31347 43330

62170

97901 110963 112923

94392

123089 127471

163012

206121

264357

508881 512167

FOS New Cases

Allocations to track and small

claims cases

0

20,000

40,000

60,000

80,000

100,000

120,000

140,000

160,000

180,000

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

170,615 168,693

179,983

163,905

173,751

155,149 153,328 151,527 154,705

140,721 143,486

152,641

53% 54%

44% 46%

42% 48% 50%

64%

54%

66%

56% 52%

Total number of allocations to track

Small claims allocations

Around 50 per cent of

all allocations are to

the small claims track

Small claims court:

timeliness

24

25

26

27

28

29

30

31

32

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Timeliness: number of weeks between issue and hearing

Approximately 30 weeks between issue and

hearing

The Small Claims Mediation

Scheme Established in 2007

Free service for users (individual litigants and businesses)

Employs civil servant mediators (originally 24 but now 17 – 18)

Conduct average of 11 mediations per week (2010 – 2012)

Claims of up to £10,000 (small claims limit)

Telephone mediation system but mediators do not speak to court users on the telephone at the same time.

Trust issues - User satisfaction – over 12,000 responses with over 80% very satisfied and 94% would use the service again.

Small Claims: numbers of

cases, referrals and

mediations Decline in numbers of cases on small claims

track approx 46,500 in 2008/9 – 30,000 in

2012/13

Numbers of mediations remain constant –

around 10,000 – 11,000 per year

Large number of cases referred to mediation but

less than half mediate.

Small Claims Mediation

Service On average half of all allocated cases are small claims.

On average 10 per cent of these go to the small claims

mediation scheme.

The scheme has a high settlement rate (approx 65 –

70%) but this might be because cases that mediate are

those more likely to settle anyway (See J Baldwin,

1997).

Hard to tell whether this has resulted in a significant

saving of court time and would need further research to

determine.

Civil Mediation Council

Self-regulated organisation for mediators

Draws together civil, workplace and community

mediators

Operates Provider Accreditation Scheme which

sets standards for Direct Gov ‘Find a Mediator’

database:

http://www.civilmediation.justice.gov.uk.

Challenges: benchmarks

and policy gaps ‘Confused complaints maze with too many ADR schemes’: Legal Services Consumer Panel Report 2014

ADR Pre-issue schemes lack focus (role of CAB)

Lack of awareness of mediation and how to access mediation services

Ombudsman provide good model for use in other policy areas

No specific ADR schemes for many areas which affect consumers eg energy providers and second hand car sales

The published data is limited and restricted to broad brushstroke categories which do not address the finer details / categories needed to analyse the impact of civil justice changes on the use / encouragement of ADR.