Presentation by Dr. Sue Prince, at the Meeting on Fostering Inclusive Growth and Trust in Justice Institutions, 12 November 2014

1. Civil Mediation and ADR in England and Wales
Dr Sue Prince
Associate Professor

2. ADR Definitions Jackson ADR Handbook (2013) states that ADR ‘has no agreed definition’ Broadly defined in Civil Procedure Rules 2014: “a collective description of methods of resolving disputes otherwise than through the normal trial process” Characteristics found in other narrower definitions such as ‘confidentiality’ and ‘voluntary’ might restrict different types of mediation.

3. Trends in ADR (civil): court processes Civil Procedure Rules encourage mediation through cost sanctions – CPR Satellite litigation on costs in mediation aims to encourage mediation in civil cases: Dunnett v Railtrack (2004), Halsey v Milton Keynes NHS Trust (2004), PGF II SA v OMFS (2013} Court-based mediation in small claims cases (under £10,000) SC cases where both parties agree to mediate are now automatically referred to SCMS (CPR 26.4A) since April 2014. ODR in civil cases pre and post-issue – Civil Justice Council Advisory Group on ODR (Reporting 2015)

4. Trends in ADR (civil) Ombudsman schemes show increased growth eg Financial Services Ombudsman RTA PI Claims Portal - Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents: http://rtapiclaimsprocess.org.uk. £25,000 HMRC Tax Disputes – Pilot Project on using ADR to resolve large tax disputes considered a success (HMRC, 2013) Government commitment towards resolving workplace disputes

5. CEDR Bi-annual Audit
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1000
2000
3000
4000
5000
6000
7000
8000
9000
10000
2003
2005
2007
2010
2012
2014
1800
2500
3400
6000
8000
9500
CEDR Audit Reports - numbers of mediations
number of mediations
This graph shows the total number of mediations taking place in the UK as estimated by CEDR. This includes commercial disputes which may not be part of the court process – not analysed by value of claim.

6. Ombudsman Service Web of public / private & voluntary redress schemes for different complaints eg financial services, furniture, legal services, etc Generally well-received but gaps and overlaps in provision ‘Complaints helpdesk’ proposed by BIS in line with EU Directive on ADR & ODR (2015) - draw services together which affect complaints individuals have with a business

7. Financial Ombudsman Service
Shows the increase in cases going to FOS on a yearly basis
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100000
200000
300000
400000
500000
600000
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2001
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2011
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2014
25000
31347
43330
62170
97901
110963
112923
94392
123089
127471
163012
206121
264357
508881
512167
FOS New Cases

8. Allocations to track and small claims cases
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20,000
40,000
60,000
80,000
100,000
120,000
140,000
160,000
180,000
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2001
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2006
2007
2008
2009
2010
2011
170,615
168,693
179,983
163,905
173,751
155,149
153,328
151,527
154,705
140,721
143,486
152,641
53%
54%
44%
46%
42%
48%
50%
64%
54%
66%
56%
52%
Total number of allocations to track
Small claims allocations
Around 50 per cent of all allocations are to the small claims track

9. Small claims court: timeliness
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32
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Timeliness: number of weeks between issue and hearing
Approximately 30 weeks between issue and hearing

10. The Small Claims Mediation Scheme Established in 2007 Free service for users (individual litigants and businesses) Employs civil servant mediators (originally 24 but now 17 – 18) Conduct average of 11 mediations per week (2010 – 2012) Claims of up to £10,000 (small claims limit) Telephone mediation system but mediators do not speak to court users on the telephone at the same time. Trust issues - User satisfaction – over 12,000 responses with over 80% very satisfied and 94% would

11. Small Claims: numbers of cases, referrals and mediations Decline in numbers of cases on small claims track approx 46,500 in 2008/9 – 30,000 in 2012/13 Numbers of mediations remain constant – around 10,000 – 11,000 per year Large number of cases referred to mediation but less than half mediate.

12. Small Claims Mediation Service On average half of all allocated cases are small claims. On average 10 per cent of these go to the small claims mediation scheme. The scheme has a high settlement rate (approx 65 – 70%) but this might be because cases that mediate are those more likely to settle anyway (See J Baldwin, 1997). Hard to tell whether this has resulted in a significant saving of court time and would need further research to determine.

13. Civil Mediation Council Self-regulated organisation for mediators Draws together civil, workplace and community mediators Operates Provider Accreditation Scheme which sets standards for Direct Gov ‘Find a Mediator’ database: http://www.civilmediation.justice.gov.uk.

14. Challenges: benchmarks and policy gaps ‘Confused complaints maze with too many ADR schemes’: Legal Services Consumer Panel Report 2014 ADR Pre-issue schemes lack focus (role of CAB) Lack of awareness of mediation and how to access mediation services Ombudsman provide good model for use in other policy areas No specific ADR schemes for many areas which affect consumers eg energy providers and second hand car sales The published data is limited and restricted to broad brushstroke categories which do not address the finer details / categories needed to analyse the impact of civil justice changes on the use / encouragement of ADR.