2002 Court of Appeal
This page contains an outline of this research, and a summary of the key findings. Details of how to find the full report can be found at the bottom of the page.
Title
Court-based ADR Initiatives for Non-Family Civil Disputes: the Commercial Court and the Court of Appeal. Lord Chancellor’s Department Research Series No. 1/02
What is it about?
The report presents findings from an evaluation of the Commercial Court’s practice of issuing ADR orders, and a review of the Court of Appeal’s mediation scheme established in 1996.
- Judges at the Commercial Court have been making orders directing parties to try ADR in appropriate cases since 1993. Although the report uses the term ”ADR”, it is in fact referring only to mediation. Mediation is not compulsory, but if the case is not settled at mediation the parties do have to explain to the court why they have not tried it, or why it has not been successful.
- The Court of Appeal sends all parties a standard letter of invitation to mediation, and since 1999 parties refusing to mediate have been asked to give their reasons for refusal. If both parties agree to mediate, the Court of Appeal arranges mediations, and mediators provide their services without charge.
Who did it?
The research was completed by Professor Hazel Genn of University College London. It was commissioned by the Lord Chancellor’s Department (now the Department for Constitutional Affairs), and published in March 2002.
Key findings
Commercial Court
- The number of ADR orders increased substantially as judges and commercial litigants became more familiar with the procedure. In the first three years, 74 ADR orders were made; in the final 18 months another 140 were made. In all, 233 cases were tracked in which ADR orders had been made. ADR was undertaken in just over half of the cases in which an ADR order had been made.
- Where ADR was attempted, 52% settled through ADR and 20% settled sometime after the ADR process concluded.
- Where ADR was not attempted, about 63% of cases eventually settled.
- Where ADR was attempted only 5% went on to trial, compared with 15% where it was not attempted.
- Experience of successful ADR following an order was overwhelmingly positive. The factors most valued were the skill of the mediator, the ability of ADR to get past logjams in negotiation, the opportunity to focus on the strengths and weaknesses of cases, and client satisfaction. There was also a perception that successful mediation avoids trial costs, leading to substantial savings for clients.
- When ADR was unsuccessfully attempted in compliance with an order there was a lower level of satisfaction. Concerns centred on the shortcomings of neutrals, the intransigence of opponents, and the problems caused by pressuring unwilling opponents to come to the negotiating table. However, some solicitors felt that even in the absence of achieving a settlement, the ADR process had been constructive.
Court of Appeal
- Between November 1997 and April 2000, 38 cases were mediated.
- About half of the mediated cases settled either at mediation or shortly after.
- Where mediation was attempted but did not achieve a settlement, 62% went on to trial.
- The most common reasons given for refusal to mediate were that a judgment was required for policy reasons, the appeal turned on a point of law, or that the past history or behaviour of the opponent meant that mediation would be inappropriate.
- Solicitors' experiences of successful mediations in appeal cases were largely positive. However, there were expressions of concern, even among cases that were successfully mediated, about clients' perceptions of being pushed into mediation and sometimes being pressured to settle. Solicitors involved in unsuccessful mediations occasionally complained about having felt compelled to mediate, even though there had been little scope for compromise.
General
- Voluntary take-up remains low, even when the mediator's services are provided free or at a nominal cost.
- Outside of commercial practice, the profession remains very cautious about the use of mediation. Positive experience of ADR does not appear to be producing armies of converts.
- An individualised approach to the direction of cases toward mediation is likely to be more effective than general invitations at an early stage in the litigation process. The timing of invitations or directions to mediate is crucial.
- In order to maximise take-up of court-administered schemes there is a need for dedicated administrative support.
