Lord Justice Jackson emphasises role of ADR in resolving disputes

One of Lord Justice Jackson’s recommendations, in his January 2010 report on civil litigation costs (click here for a summary of the key recommendations affecting commercial clients), was that all litigation lawyers and judges should be properly informed about the benefits of alternative dispute resolution (ADR) and alert the public and small businesses to those benefits. To this end he recommended that an authoritative mediation handbook be prepared. In his recent lecture on the role of ADR in furthering the aims of the costs review (the 11th lecture in the implementation programme for the Jackson reforms), Lord Justice Jackson confirmed that an ADR handbook for use by judges and litigators is planned to be published in April 2013.

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In his speech,  Lord Justice Jackson emphasised the important role of the judiciary in encouraging ADR. He applauded the work of the courts, in particular the Technology and Construction Court (TCC), in promoting ADR through active case management, and cited research suggesting that through judicial encouragement of ADR, the number of commercial disputes referred to mediation in England and Wales has increased by 141%. He also highlighted the importance of costs sanctions as a means of encouraging litigants to undertake ADR – including reduced costs recovery for a winning party and indemnity costs against a losing party.

Lord Justice Jackson also commended ADR facilities provided by the courts, notably:

• early neutral evaluation (ENE) procedures offered within the Commercial Court and the TCC, whereby a judge gives a non-binding evaluation of the merits of the case (or part of it) which is provided only to the parties;
• the TCC's court settlement process, in which a judge effectively acts as a mediator;
• the Court of Appeal mediation scheme (which from April 2012 will conduct a compulsory mediation referral pilot for all personal injury, clinical negligence and contractual claims worth no more than £100,000 where permission to appeal has been granted).

In coming to his recommendations, Lord Justice Jackson has been guided by ADR methods deployed within the construction industry – ranging from dispute avoidance and negotiation (still the most common forms of dispute resolution), to formal dispute review boards and adjudication. He appears (unsurprisingly) to support mediation as the key ADR process; concluding that "mediation has a significantly greater role to play in the civil justice system than is currently recognised."  In his view, "cultural change, not rule change" is required to further advance mediation. He clearly supports greater judicial activism in promoting ADR, whilst acknowledging that judicial discretion (both in encouraging ADR and imposing sanctions for failure to attempt ADR) must be preserved. Mediation is not in his view a universal panacea, and the role of the courts in recognising appropriate mediation/ADR opportunities will be vital.