Mediation still on the menu

The Civil Justice Council (CJC) has rowed back from its previous support for compulsory mediation before litigation.

Previously, it has said there should be a presumption in law that parties try alternative dispute resolution (ADR) before issuing court proceedings. In a report making recommendations for ADR, published this week, however, it has instead recommended that courts impose sanctions on those who refuse to take reasonable steps towards settlement and to the use of ADR.

Other proposals include that there be a forum for continuing liaison between judges, ADR professionals and other stakeholders over ADR’s role within civil justice.

The CJC calls for steps to be taken to promote greater awareness of ADR among the public, such as peer mediation in schools and colleges, an increased embrace by law faculty and professional training and disciplinary codes of ADR. It suggests that a website be created to act as an umbrella source for information about ADR. It also calls for the small claims mediation scheme to be fully resourced so it can fulfil its potential and for cheaper types of mediation to be considered, such as three-hour telephone mediations.

Peter Causton, director, ProMediate (UK) Limited, said: ‘The CJC’s report stops short of recommending compulsory mediation but does make some interesting recommendations designed to increase mediation.

‘The most significant is possibly the recommendation to introduce an automatic “notice to mediate” procedure.

The report also recommends increased regulation of the mediation profession, reviewing court forms, revisiting Halsey unreasonable refusal to mediate, compliance and continuation of the ADR and ODR Regulations in Consumer cases, and greater engagement by the judiciary earlier in proceedings.’