Lord Justice Jackson has recently strongly endorsed the central role ADR has to play in our civil litigation landscape.
A recommendation in his January 2010 report on civil litigation costs was that all litigation lawyers and judges should be properly informed about the benefits of ADR and should 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, Lord Justice Jackson confirmed that an ADR handbook for use by judges and litigators is planned to be published in April 2013. In his speech, Lord Justice Jackson also 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 to the parties
- the TCC's court settlement process, in which a judge effectively acts as a mediator
- the Court of Appeal compulsory mediation scheme pilot (see 4 below)
He concluded that “mediation has a significantly greater role to play in the civil justice system than is currently recognised.” To achieve this, “cultural change, not rule change” is required. Whilst Lord Justice Jackson clearly supports greater judicial activism in promoting ADR, he acknowledges 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.