Should Mediation become “the cultural norm” and will Alternative Dispute Resolution ‘ADR’ become ‘DR’?
At the recent CIArb Mediation Symposium discussing the role of mediation in society, Lord Justice Briggs advocated that mediation should not be compulsory but ought to become the cultural norm. He said of the role of mediators:
“I regard mediators with limitless admiration for what they achieve, a large measure of incomprehension at the magic they use to achieve their results, and I am determined to do what I can to see that mediation continues its inexorable course to being the primary rather than merely alternative means for the resolution of civil disputes.”
Referring to Stage 2 of the Civil Courts Structure Review, Lord Briggs said that:
I. Mediation was performing a broadly satisfactory role at the higher value end of the civil litigation spectrum, above £200,000. Few high value cases now come to trial without one attempt at mediation (or sometimes more), and in many fields only a very small minority therefore get to trial at all.
II. Mediation was showing signs of success for resolving low value claims up to £10,000.
III. There was a real gap in mediation (or ADR) penetration in relation to the claims in between (£10,000 to £200,000) and particularly in relation to personal injuries (including clinical negligence) cases.
IV. Recent sharp rises in court issue fees had led to a rise in pre-issue mediation.
ADR and the Civil Courts
Commenting on the proposal for an online court, Lord Justice Briggs argued that it would have major implications for the relationship between ADR and the civil courts:
“First and foremost, it brings what we still call ADR into the mainstream of civil dispute resolution, by becoming an essential second stage in the court’s process. In short, it seeks to take the ‘A’ out of ADR. That is why I would like to see the new court called a Resolution or Solutions Court, following the lead set by British Columbia.
I do not mean that we plan to make mediation or other resolution processes compulsory. Parties may still say no, but the cultural norm will be to take part. Going to court will be seen as a process aimed at resolution, not just, or even primarily, at trial.”
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