10 Jun 2019
Lawyers are facing a Perfect Storm in the coming 12 months. Fixed Recoverable Costs (FRC) for claims up to £100,000 are just around the corner (with political wind in its sails), in April 2020 the increase in the Small Claims limit comes into play and an Online Court that is feared will exclude lawyers is the subject of a Bill before Parliament. On top of this ADR looks like being made near-compulsory or, as Masood Ahmed puts it, implied compulsory, from his speech at CIArb’s Annual Mediation Symposium in 2011.
The business of law is changing at pace and lawyers will need to keep up with innovative solutions if they are to do more than survive. The aims must be: reduce overhead, increase volume and cycle times of cases. Time to think smart: technology and new approaches will be required.
Despite fears to the contrary both ODR and ADR feature as an integral part of the proposals for the Online Court and the new Small Claims Portal. That is perfectly understandable. A good example of how lawyers have been integrated into an ODR system is the Civil Resolution Tribunal in British Columbia. Far from being excluded lawyers in Canada are an important, and welcome, feature of the Tribunal’s system.
In 2013 Lord Justice Briggs (as he then was) was tasked with undertaking an inquiry called the Chancery Modernisation Review. In chapter 5 he explained his views on the proper place of ADR in a modern court system. In his view the Alternative in ADR would be dropped and ADR would take its place as simply another form of dispute resolution. This kind of thinking has been around for some time.
What is less well known are the practical steps Sir Michael recommended be taken in this respect. His approach involves getting away completely from the Human Rights issues that arise in connection with the debate about the compulsory use of mediation and arbitration and whether compulsion works to deny the citizen his or her right to a fair trial. Instead Sir Michael argues not for compulsion but integration. Not regarding ADR as an end to the court process but an integral part and a step along the way to a trial which may, or may not, take place but is never excluded.
Sir Michael recommended (p.69):
5.17 The parties to Part 7 and Part 8 proceedings should be required to focus in more detail upon, and inform the court of their views about, the suitability, type and timing of ADR, before the first CMC (or directions hearing of a Part 8 claim). The simple questions in the recently superceded allocation questionnaire are, in my view, inadequate for that purpose. The parties need to be required to focus on, at least, the following questions:
5.17.1 Whether ADR is suitable at all. There will be some types of litigation where it is generally not, but otherwise the cases in which no ADR is attempted should be rare. But it may be that ADR has been tested and found wanting before proceedings are issued, and is not worth repeating.
5.17.2 Whether facilitative or evaluative ADR is preferable.
5.17.3 When, on the time-line of increasing information and increasing cost, ADR would be most likely to be cost effective. The timing issue is one of the most difficult and important questions to address in relation to ADR.
5.17.4 Whether private or court provided ADR is to be preferred.
5.17.5 Whether, ahead of any probable directions by a mediator or evaluator, the court can assist the parties in limited exchanges of the necessary information, so as to enable effective ADR to take place earlier than would otherwise be practicable, and at a more affordable cost.
He then reviews various forms of ADR including Early Neutral Evaluation (ENE) be that private or Judge led by a dedicated Settlement Judge. Finally he concludes (para 5.31 on p.72) that a failed ADR event should not be regarded as an unsuccessful ADR event. This is because such events can assist in narrowing the gap between the parties thereby enhancing the prospect of a more economical trial (para 5.31 on p.72).
The Perfect Storm I described above becomes a Perfect Maelstrom when adding to the mix the difficulties the civil courts are enduring which include:
All of these basic, structural components of the system are vital to enable lawyers to get their cases to a conclusion. The longer a case takes the less likely a resolution will be achieved which makes cases not profitable but lead weights on a solicitor’s cash flow because they cannot progress due to the malfunctioning civil courts. A salutary lesson in this area is afforded by the judgment of Parker, J. in the recent case of Lomax v Lomax [2019] EWHC 1267 (Fam) handed down on 20 May 2019 where the Learned Judge explained she thought the case “screamed out for ADR”. A bitterly fought Inheritance Act case in which both parties sought a Judicial ENE. Both sides’ Counsel were complimented by the Learned Judge for their collaborative working. This kind of approach is needed in every case.
The answer is integrated ADR supported by a secure Cloud based Platform enabling faster cycle times, happier clients and buoyant cash-flow that every law firm needs now, in the coming 12 months, and beyond.
Sir Michael Briggs has shown ADR can be integrated with the conduct of civil proceedings. No need to wait for rule changes as everything is there in the Courts’ existing powers to manage cases. Running ADR through a neutral platform, i.e. not a law firm extranet, will enable the volumes required to be processed quickly AND in a GDPR compliant way. Cash will flow from the fact that good ADR practitioners are achieving settlement rates of 70%-80% or more. Institutions such as CIArb can help practitioners to choose suitably qualified and experienced ADR practitioners for the cases at hand.
Go for it!
TONY N GUISE
Tony is the Director of DisputesEfiling.com Limited the provider of online ADR platforms and a Past President of the London Solicitors Litigation Association.