CJC report on mediation
At last we get the report from the Civil Justice Committee that we UK mediators have been waiting for
Sir Terrence Etherton, Master of the Rolls, says of the report:-
"The group’s recommendations include the use of a judicial-ADR liaison committee, increased public awareness of ADR, peer mediation in schools, increased law faculty and professional training and a new website to act as a single umbrella source for information about ADR.
“Work has already commenced on the creation of the judicial-ADR liaison committee, which will play an important oversight role in the area. The committee will report to me, as the Chair of the CJC and head of Civil Justice in England and Wales.
“The CJC fully endorsed the report at its last meeting, and we are very grateful to William Wood QC, the CJC member who chaired and led the group, and to the other members for the expertise they have brought to this fast-moving topic.”
It’s fantastic news for mediators in the UK who have been waiting for as it lays the groundwork for a Notice to Mediate procedure, revisits Halsey guidelines and tightens up when it may be reasonable to refuse to mediate. It recommends improving the court forms for showing mediation has been entered into, encouraging early mediation and improving compliance with the ADR regulations in consumer cases (which all CMC regulated mediators do).
It also begins work on creating a new website “Alternatives” and creates a judicial liaison committee with a view to furthering education on the role of mediation.
I make no understatement by saying this is the biggest single move in the history of main stream civil mediation in the courts of England and Wales, it is of course long overdue and whether the aims of the report become reality and how quickly that happens are still to be seen.
We can finally see the beginnings of a move from the outdated adversarial system to a neutral evaluation system, whether by early judicial intervention (JENE) or private early neutral evaluation (PENE).
Yes, it stops short of a presumption of mediation or making it obligatory, but it does say that if by the time parties have not reached directions they haven’t tried some form of ADR they will need to be directed to suitable local mediators.
I can’t help thinking that I’m rather more found of PENE than JENE (Private Early Neutral Evaluation/Judicial Early Neutral Evaluation) as by the time the JENE comes along the genii is out the bottle.
My favourite understated quote from the introduction is that “Mediation is flexible, massively successful”
Yes that’s right you continue to hand over your case to lawyers when mediators would do the job quicker, cheaper and reach a successful conclusion without the risk.
Efforts to encourage mediation continue elsewhere this week, the West Bengal National University of Juridical Sciences Kolkata (NUJS) has organised Indian Mediation Week which attracts mediators and industry players from across India in an awareness campaign in conjunction with ODRways ADR Centre.
ODR is a company started by two law graduates and one IT boffin who are trying to change the way disputes are dealt with in India, they, like the CJC, recognise the benefits of early mediation. It has launched a mediation embassy (online) to track awareness of the availability of mediation.
Will the CJCs campaign result in a similar online UK embassy, and would the public respond?
Over in the US an insurance claim has been flushed away (struck out) by the court due to the failure of the parties to mediate. Now it’s a slightly different circumstance as the insurance policy required mediation, so unlike Halsey in the UK where mediation was an option which should have been adopted, but nonetheless it’s a striking reminder of the consequences of failing to mediate.
There are so many cases which could have been resolved by early intervention of mediation it continues to surprise me the lengths the public (and some lawyers) will go to avoid referral.
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