Report of The Civil Justice Council “ ADR and Civil Justice”
Last month the Civil Justice Council released their final report on Alternative Dispute Resolution entitled “ADR and Civil Justice.” This is a brief look at the main themes in the report and the implications for mediation in particular and consideration of how certain recommendations may have resonance in Guernsey.
The Terms of Reference for the review were as follows:-
- To review existing forms of encouragement for mediation (and other suitable forms of ADR) in civil cases in the Civil Procedure Rules, case law and the powers of the court.
- To consider alternative approaches to encourage the use of mediation (or other suitable forms of ADR) in civil disputes.
- To assess proposals for reforms to the rules or for initiatives that might be taken outside the formal rules.
- To monitor and contribute to the forthcoming review of the EU Mediation Directive.
Although the CMC came forward with twenty-four clear and interlinked recommendations they in addition recommend continued review and experimentation for the role of ADR, including mediation, in the Civil Justice System.
The Working Group viewed the main issues as three related challenges which required progress in all three areas if there was to be significant progress in the use of effective mediation in England and Wales in civil cases. These were :
- The awareness of ADR, both in the general public and in the professions and on the Bench;
- The availability of ADR, both in terms of funding and logistics and in terms of quality and regulation of the professionals involved;
- The encouragement of ADR by the Government and Court
They did highlight that the awareness strand was probably the most important and likely to be the most difficult challenge.
Interestingly they give the requirements of the system they seek to work towards which includes citizens being aware of alternatives to capitulation or litigation when disputes arise, including approaches involving neutral third parties to assist settlement. In addition these alternatives should be available in a practical and affordable form with transparent standards of practice.
The working party highlight that far from being a sign of weakness the use of such techniques is wise, culturally normal and would be expected by the court. The court would also encourage and promote ADR processes in a range of ways.
So how could this report have significance in Guernsey ?
- Is the government, judiciary, legal and allied professions ready, willing and able to encourage and promote the use of Mediation and other forms of ADR to resolve Civil and Commercial disputes ?
- How can the people of the Bailiwick be made aware of the benefits of mediation and encouraged to use it ?
With regard to specific recommendations:-
· No 3) How could liaison between ADR professionals, CAB and third sector bodies supported by government, improve availability for people who would not have the means to access mediation services?
· No 4) Could a system of Peer Mediation be introduced into Guernsey Schools perhaps alongside restorative approaches already being used?
· No10) I will continue to attempt to use broadcast and social media to raise awareness of mediation in particular. I also will endeavour to use events for HR professionals, Directors and others to raise awareness of the benefits of Workplace and Employment mediation.
· No 6) Does professional training in Guernsey embrace and emphasise the role of ADR and if not how can that be improved ?
It would appear that ADR and in particular Mediation is an underused process in Guernsey. I hope it grows in importance for the benefit of individuals, public, private and third sector organisations.
For those interested in the benefits of ADR and mediation the full report is available on judiciary.uk
If you would like to discuss services from Alan Brown Mediation please get in touch.