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Briggs LJ: Mid-value mediation gap ‘needs to be filled’

New online court to have an ‘absolutely central role’ in empowering parties to resolve civil disputes

11 October 2016

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The mediation gap between low-value claims and big-ticket litigation must be closed, Lord Justice Briggs has urged as he invited lawyers to work with the judiciary on the development of non-court-based dispute resolution methods.

Talking on the first day of Mediation Awareness Week, the senior judge, who controversially recommended the setting up of a lawyerless online court in his far-reaching report on the civil courts structure in July, said the development of mediation had paused after a few decades of growth and that it was yet to become the norm for mid-value claims.

‘Mediation is working well for small claims – up to £10,000 where there’s a free government-run telephone mediation service – and very well in respect of very large claims – over £200,000. I can’t remember, when I was a chancery judge, ever trying a substantial case where the party hadn’t tried to mediate – but there’s a bit of a gap in between which needs to be filled,’ Briggs LJ said at a reception held at Garden Court Chambers.

The senior judge acknowledged further that mediation had ‘achieved widespread levels of recognition within the legal landscape’ but that it had now reached ‘a steady state’. He went on: ‘And in one or two areas, for example in the scrapping of the national mediation helpline, it might even have retrenched a little bit.’

Mediation has been seen as a key driver in the government reforms of the justice system that have resulted in severe legal aid cuts and the closure of hundreds of courts. The most recent projects include greater reliance on technology to achieve efficiencies and to increase access to justice. These include the development of online dispute resolution mechanisms of the types found on eBay and Paypal, and the setting up of online courts.

‘The resolution of civil disputes – I mean that in the sense of empowering parties to resolve rather than judges deciding – is going to play an absolutely central role in this new [online] court. As I’ve said in the past, it’s going to take the A out of ADR; it will no longer be alternative but a culturally normal – but still voluntary – part of the civil litigation mainstream in this new court,’ said Briggs LJ. ‘It will, I hope, include online and telephone mediation as well as the well-recognised but more expensive face-to-face variety. My hope is that by being introduced into the mainstream in this new court for disputes – where the initial ambition is to go up to £25,000 – it will blaze the trail for bringing it into the mainstream right across the civil litigation board.’

Mediation Week intends to address one of the main obstacles to the development of mediation: lack of awareness about the process. ‘Other than the specialist legal press, are the media covering this?’ Graham Ross told me after Briggs LJ’s speech. For the head of the European advisory board of Modria, the California-based ODR outfit, there were several equally pressing issues, such as the absence of records on the number and type of cases going to mediation, and the lack of sign-posting for ordinary users.

Meanwhile, mediator David Watkinson said most of his clients came from court referrals. The former barrister and co-founder of Garden Court Chambers also said clients, not lawyers, were the ones who needed to be persuaded of the benefits of mediation. ‘Most lawyers try to keep their clients out of court and suggest mediation if it’s appropriate, but some clients are intent on having their day in court, convinced that the judge will see their side of the story and rule in their favour.’

For many in the room, ODR could be the trigger that brings mediation into the limelight. ‘There’s about to be a revolution in civil litigation,’ Briggs LJ says, with paperless technology about to be rolled out across the board and the commitment by the Ministry of Justice to persevere with online courts. This, the judge said, would remedy what he called in his interim report ‘a shocking lack of access to justice for ordinary people and small businesses with modest-value cases of, say, up to £25,000 value at risk’.

IT management consultant Tresca Rodrigues, who specialises in the dispute resolution sector, says widespread ADR success hinges on two key elements: public awareness of and confidence in the service.

'A coordinated approach by government, the MoJ, judiciary, voluntary agencies, the legal profession, ADR and pro-bono organisations to create a strategy, supported by technology, is essential to raise awareness of the benefits of ADR and integrate it effectively into the dispute journey to help reduce the justice gap', she said. 'A way to achieve this could be by stakeholder working groups actively engaging to create an comprehensive plan underpinned by government funding. It is crucial that working group members encompass the necessary multi-disciplinary skills and experience across, law, understanding of user-need, ADR, technology and business. The CJC ADR and LiPEG (Litigant-in-person engagement group) working groups would be a good place to start. This joined-up-approach would have the added benefit of dovetailing into the design of the online court proposed by Briggs LJ.

For mediator and Civil Justice Council adviser Tim Wallis, there is no doubt that, before long, ODR technology will provide ‘the front end wrapper for mediation services’.

Until then, however, stakeholders will need to continue with their effort to steer litigants away from courts. One particular tool is the development of mock mediation, described by Briggs LJ as ‘a superb device to bring mediation home in reality to people and to educate appeal judges’.

It will likely be a while before mediation takes hold on the scale envisaged by Briggs LJ. In the meantime, his call to supporters of mediation ‘as a primary rather than just alternative means of solving civil disputes’ to ‘engage in these exciting reforms’ is a welcome step in this direction.

Jean-Yves Gilg is editor in chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg

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