Mediation involves both parties appointing a mediator that suggests a resolution known as a mediator’s proposal. This process can be “evaluative’ where the mediator gives an assessment of the legal strengths or ‘facilitative’ where the mediator function is to help the parties to define the issues. Any decision is written down and forms an agreement which is legally binding unless the parties state otherwise .
Through this essay, I shall highlight the connectivity of mediation to the CPR and evaluate its effectiveness while reflecting the possible impact arising from such use of CPR in mediation and how this have been affected it effectiveness.
Courts were vested with powers of case management and discretion in matters of procedure. The CPR came into force on 26th April, 1999. CPR largely implements the recommendations of Lord Woolf in his Report which proposed measures to put right the shortcomings of the old system. The first rule CPR 1.1 declares that the “overriding objective of the CPR was to enable courts to deal with cases justly.”
Those principles lay at the heart of the Civil Procedure Rules, which came into force in April 1999. The Civil Procedure Rules included references to ADR in rules of court and introduced pre-action protocols, with their emphasis on settlement, even before court proceedings are issued. Civil Procedure Rule 1.4(2) (e) now requires the court, as part of its responsibility to actively manage cases and encourage the parties using an ADR procedure if the court considers it appropriate and to facilitate the use of such procedure .
CPR establishes a procedural discipline designed to enable the court to do substantive justice by the use of proportionate resources and within a reasonable time.’ The court therefore has extensive powers to ensure that the process employed is proportionate to a case’s needs. CPR 1.1(2) (e) instructs the court to allot to any given case an appropriate share of its resources, bearing in mind the need to reserve resources for other cases.
In England ever since the advent of the CPR there has been a great deal of encouragement given to alternate dispute resolution. Under the CPR there is a provision under Part 36, for the protection of Defendants from costs liability by way of payment into court in full settlement of the claim. If the Claimant refuses to accept the amount paid in full settlement and fails to obtain a judgment that is more favourable than the amount paid in, the Claimant is liable for the Defendant’s costs.
CPR 36 was introduced by Lord Wolf pursuant to his Access to Justice Report. It was a policy mainly to encourage reasonable and early settlement of disputes. CPR 36 has expanded the former system by allowing claimants as well to make the Offers of Settlement. The CPR does lay down guidance to the parties to use an alternative dispute resolution procedure if the court considers that appropriate.
Judicial history was created in the case of R (Cowl) v Plymouth City Council where Lord Woolf in his judgement stressed that “there is now a duty on the parties to a dispute to consider ADR before entering the judicial process.” This was further buttressed by the judgement delivered by in the case of Dunnett v Railtrack Plc. Lord Justice Brooke held that Lawyers have a duty to warn clients in regards to ADR turn down. In this case, the Court of Appeal refused to award costs to the successful litigant (Railtrack) as it had refused to mediate when it was proposed at an earlier stage in the proceedings.
It was only in May 2002 that Mediation received recognition as an effective method of dispute resolution in the case of Hurst v Leeming . Mr Justice Lightman .He further went on to state that any unjustified failure to give proper attention to the opportunities afforded by mediation may attract cost consequences. The judgement is a landmark one as it vested the court with the task of deciding what is considered to be a ‘reasonable’ refusal to mediate.
The Supreme Court of India recently in United India Insurance Co Ltd v Ajay Sinha highlighted the statement of objects and reasons for enacting The Legal Services Authorities Act 1987 . In this case, they highlighted the effectiveness of mediation in dispute.
To further use ADR, in Dunnett v Railtrack the courts showed that they were prepared to impose a costs penalty on a party who failed to take part in an ADR process. This approach as also use in Halsey v Milton Keynes NHS Trust the court reviewed practice relating to ADR, and accepted the potential benefits of ADR.
A key issue is whether a party can be forced to use ADR. It is possible that this might be a breach of Art 6 of the European Convention on Human Rights . An order to use ADR which prevented access to a court would potentially breach this right, though the European Court has accepted that a party can waive Art 6 rights in for example agreeing to a binding adjudicative process, so long as there is not undue pressure and the right to trial is retained as we saw in Deweer v Belgium . Within this jurisdiction judges considered the issue of compulsion in Halsey v Milton Keynes NHS Trust . Though possible breach of Art 6 was not fully argued and comments by Dyson LJ were obiter. The position is that no party can be forced to enter into any form of ADR, or to agree an outcome to a non-adjudicative ADR process.
Figures show that 270 applications for exceptional case funding between April 2014 and June 2014; similar number of applications to the same period the previous year, but a reduction of 99 (27%) from the previous 3 month period . The Statistics show that compulsory (MIAMs) have not had the impact on public mediation numbers that the Government had hoped.
My opinion it appears that the new test has taken away the element of certainty that existed previously. It has also created scope for more litigation because what constitutes “a more advantageous judgment” will now have to be determined by a court. This will invariably encourage litigation and hence overburden the courts. In the U.K, as I have delved into earlier a number of legislative attempts were made to promote the use of ADR methods in resolving disputes. The courts in England are not far behind in this endeavour. The CPR brought about a change in attitude of the courts and the conservative use of the limited court resources became imperative.