Lawyers and consumers need to “buy into” the use of alternative dispute resolution but do not need it forced upon them, the Law Society of England has said.
The solicitors’ representative body told the Civil Justice Council that it should continue to steer clear of mandatory ADR as a condition for issuing proceedings. To impose a requirement, the Society said, would ‘frustrate the principle’ that litigants should have unimpeded access to the courts.
A working group of the CJC has invited submissions on the future role of mediation and how rule-makers can encourage greater use of the method.
The Law Society agreed with the working group that use of ADR in the civil justice system remains ‘patchy and inadequate’ and is not sufficiently employed across all types of cases.
‘Both the legal profession and consumers will need to buy into the use of ADR as a method to resolve disputes rather than proceeding the whole way through the court system,’ said the Society’s response. ‘We remain supportive of the idea of a single complaints helpdesk that could signpost consumers to the correct ADR provider. We accept that the current regulatory landscape is complex for consumers and that a single point of contact would be helpful.’
The Society urged the CJC to consider the ongoing and potential civil justice reforms when setting out a plan for increasing mediation use.
It said the small claims mediation service would not cope with the volume or complexity of claims if the small claims limit for RTA claims is increased to £5,000, as the ministers have proposed.
The government has assessed that 96% of claims would be captured by an amended £5,000 limit, which equates to 525,000 additional claims – even before considering a more modest increase for other personal injury cases.
The Society added there was a good argument for active case management and for the judiciary to encourage ADR once a claim has been allocated.
The Civil Justice Council has confirmed it is holding an ADR workshop focusing on the report published in October 2017 and the subsequent consultation process. A final report recommending the best way to proceed is likely to be submitted to the government later this year.
