You will be well aware of Lord Justice Jackson’s review and the recent publication of his interim report (update Jan 2010 – Lord Jackson’s final report is now available). Part 8 is headed Controlling the Costs of Litigation and has some discussion about alternative methods of dispute resolution, including of course mediation. After reviewing research and submissions made in Phase 1 he gave this “tentative opinion” :
6.33 Tentative opinion.
My own tentative opinion, based upon experience and upon the material gathered during Phase 1, is that in the context of business disputes the parties and their advisors are nowadays well aware what ADR has to offer. In the Commercial Court, the Mercantile Courts and the TCC parties can usually make sensible decisions about ADR without extensive input from the judge. If they want to mediate they will do so. If, on the other hand, they desire the decision of the court, then that is what they are entitled to receive, without being forced to incur fruitless mediation costs.
6.34 Away from business litigation, however, parties are less well informed about the benefits of ADR and there is a need for better information and education about ADR and its benefits. Even there, however, if reluctant parties are forced to mediate, the outcome may be wastage of costs rather than settlement.
6.35 I look forward to receiving comments on the above issues during the course of Phase 2. In particular:
(i) What more should be done to promote the use of ADR in the cases where one or both parties are individuals, rather than businesses?
(ii) Is the NMH a satisfactory substitute for the various court-based mediation schemes which it replaced?
(iii) In the experience of practitioners and court users are the present procedural rules and the present judicial approach to ADR leading to a (a) saving of costs or (b) wastage of costs?
Various mediation organisations with which I am involved are already preparing further input for Phase 2. You can access the whole of the interim report here and my brief review of the personal injury aspects at the Personal Injury Mediation Service.
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