Tony Guise explores the MoJ’s Call for Evidence on ADR
This is the fourth article in our series of five pieces looking at the Big Building Blocks for the reforms being implemented during 2022 in the civil justice system of England and Wales.
This month, we look at the Ministry of Justice’s call for evidence, “Dispute Resolution in England and Wales”.
Published in August 2021, the call had a deadline of 30 September for responses, which was extended to 31 October in reaction to cries of anguish about the short deadline.
That short deadline was entirely in keeping with the urgent pace of progress injected into the reform movement by both senior judiciary and government. No more big-name reviews followed by big tents, little tents, engagement sessions… only for all that to be followed by years of inaction. Au contraire! This time it’s all about getting the job done, and fast.
The extension of the deadline at least allowed for two round tables to be hosted by the MoJ during October, at which the issues raised in the call were debated. I attended one of those events, at which a diverse group of about 20 people from across the civil justice community debated the topics raised in the call.
Those issues were:
- Drivers of engagement and settlement
- Quality and outcomes
- Dispute resolution service providers
- Financial and economic costs/benefits of dispute resolution systems
- Technology infrastructure
- Public Sector Equality Duty (PSED)
- And the challenging final section: “Additional evidence” (challenging not so much for want of evidence, but for a surfeit of issues that require attention from funding to cross-Department working).
Dispute resolution was defined in this way:
“…we want to make the justice system better able to resolve disputes in smarter ways, combining pre-claim portals and court processes with integrated mediated resolution interventions.
We share a commitment to providing the strongest possible evidence base for the development of such an approach….” (p.4, call)
Evidence-based approaches in a civil justice system where data-led reform has almost never happened is a challenging call. Nevertheless, DisputesEfiling.com (DEF) did our bit to provide (anonymised) data from the cases we manage on our (A)DR platform – and from recent studies based on empirical evidence, including the July 2021 report from the Department for Education about reforms to the scope of the Tribunal for Special Educational Needs and Disability jurisdiction, which was an excellent piece of work providing insights of different kinds. Positive news from that report was the empirical evidence of how well mediation works in this sector, with user feedback considered in detail. On the negative side, the report illustrated how challenging Departments find even entering into a data sharing agreement. The report notes that the DfE and the MoJ were unable to reach agreement to share data, causing the report’s authors to have a smaller base of respondents to approach. Cross-department vacillation is a serious obstacle to the success of the reform programme – and a way must be found to overcome this issue. This is not an isolated example.
The background to this latest attempt to shift the dial on the reform programme is set against a crisis of funding. Under the 2015 financial settlement between the MoJ and the Treasury funding for the modernisation programme was due to end in April 2022. Fortunately, and thanks to heavy lobbying by the Lord Chief Justice, the Treasury produced more money to complete the modernisation programme by the delayed date of 2023. Unfortunately, the money is allocated under what is known as a “cross-cutting measure” – meaning that the MoJ has to negotiate with five other Departments to secure the funding. Given the MoJ has found entering into a data-sharing agreement with another Department challenging, I am not optimistic the money will materialise.
Leaving such gloom to one side, for the moment, what is really positive about the call is the way it commands the support of the Senior President of the Tribunals, the Master of the Rolls, the President of the Family Division – and, perhaps most telling, the government, in the form of the then Lord Chancellor Robert Buckland QC MP and Lord Wolfson of Tredegar QC, the Parliamentary Under Secretary of State at the MoJ. Unlike Robert Buckland, Lord Wolfson remains in post, and is an avid enthusiast for the modernisation programme and the other reforms coming next year, as was plain from his passionate speech to the Civil Justice Council’s recent National Forum.
There is much that is positive in the Call’s approach and the direction of travel is clear. 2022 is going to be a busy year! The pace of civil justice reform is fast.
Tony Guise is the director of DisputesEfiling.com. He is also past president of the London Solicitors Litigation Association: disputesefiling.com; Twitter: @CloudArbitrator; LinkedIn: linkedin.com/in/tonyguise