As pandemic restrictions relax and we return to whatever might be “normal” it is an opportune time to consider how the litigation landscape has been changed over the last year. Covid has undoubtedly acted as a catalyst in many areas: the move to online meetings, Court hearings and mediations would have occurred in time but have of course now become the default to get business done. Other changes, which are not Covid related, have occurred over the last year and are as significant.
It is important to understand that the Judiciary have for some time have taken the view that the Court process is there to assist parties to find a resolution to their dispute and not an adjudication of the dispute by a Judge at trial. The analogy frequently adopted is that as a consumer buys a drill to make a hole and in the same way a claimant issues proceedings not for the joy and admiration of the judicial process but to get a resolution of his or her dispute.
In a speech on 26th March 2021[1] the new Master of the Rolls, Geoffrey Vos, explored how he intends to ensure that parties find the resolutions that they seek. His starting point is that he believes “that almost every dispute has a sweet spot when it is amenable to consensual resolution.” Alternative Dispute Resolution (“ADR”) in its various forms provides the mechanisms to achieve that but he believes that “Alternative” is a misnomer. His aim as the Head of Civil Justice is to ensure that “Dispute Resolution [becomes] an integrated process in which the parties feel that there is a continuing drive to help them find the best way to reach a satisfactory solution.”
The Master of the Rolls is also looking to build on a Court of Appeal case that just pre-dates the pandemic which determined that a Judge may now order parties to participate in Judicial Early Neutral Evaluation (JENE)– an early judicial indication to the parties of the merits of a case. Prior to Lomax v Lomax[2] a JENE could only take place with the consent of the parties. Strictly the case does not determine whether a Court can order a mediation but the Master of the Rolls has asked the Civil Justice Council to consider cases where mandatory mediation may be appropriate. The CJC report is expected “shortly” but other judicial commentaries would certainly suggest that contentious probate and boundary disputes will be areas under close scrutiny.
The speech does provide a very useful insight which builds on recent judgments and the work of this Master of Rolls’ predecessors. It is an evolutionary change where momentum has been building for some years. Practically the significant changes for those involved in litigation arise from the move “online” and in particular how quickly mediation has adapted to this new environment.
Most mediations have now moved online and offer a flexibility to users that the physical mediation does not. Parties are no longer limited by geography and the need to convene in one venue for one day. There is more pre-mediation contact, preparation and exploration of the issues by the mediator and the parties: this itself is much more efficient as the “other” side is not waiting in the other room for another conversation to conclude. The parties are not limited to the mediation “day” itself: a mediation can be split in to shorter sessions that can be quickly re-convened with attendees who need to be there as opposed to attending “just in case”.
As we emerge from lockdown the question arises: are you ready for the new environment? Which of the “DR” options are best for your case? The Judicial ENE? The offer or Part 36 to be made / received? Why is this case proving “sticky”? What are the non-financial factors that are preventing resolution? How are you going to find out what those are and can you do anything to resolve them? Is mediation the right course?
Can you resist the suggestion for mediation? As the Master of the Rolls says there is a “continuing drive” to help parties find resolution and where almost every case has a “sweet spot” for resolution it is going to be very hard for parties to suggest that a failure to mediate is reasonable.
The better question to ask may be whether you can force the pace? Is it necessary to have all the evidence? Full experts reports? Witness statements? Are the legal costs of taking those steps and mitigating the risk of an “inappropriate” settlement actually contributing to the risk by adding to the cost of the dispute?
The Courts are going to look favourably on and will assist parties looking for resolution and the option of online mediation hastened by Covid will provide the opportunity to achieve earlier and better settlements. Do you have settlement strategies fit for the post-pandemic litigation environment?
The author will be discussing these issues and demonstrating the use of “breakout rooms” in online mediations at the MGAA Claims Forum on 20th May 2021.
Terry Renouf
Renouf Mediation
[1] The Relationship between Formal and Informal Justice, Geoffrey Vos MR, Hull University 26 March 2021
[2] Lomax v Lomax [2019]EWCA Civ 1467
