Wolfson: Looking to make less adversarial routes the norm
More “innovative technologies” and an “integrated online dispute resolution process” have been promised by the Ministry of Justice (MoJ) in a fresh bid to reduce the amount of litigation in the civil and family courts and tribunals.
Issuing a call for evidence, the MoJ said what had been regarded as ‘alternative’ means of dispute resolution (ADR) should be “mainstreamed” within online processes.
In a joint statement with the Master of the Rolls, Sir Geoffrey Vos, the President of the Family Division, Sir Andrew McFarlane, and Sir Keith Lindblom, Senior President of Tribunals, the MoJ said that a quarter of a century after the Woolf report, litigation was “far from the last resort and too many cases still go through the court process unnecessarily”.
The group said the provision of non-court dispute resolution remained “patchy”, despite “a wide range of ombudsman schemes, private dispute resolution services and judicial early neutral evaluation projects”.
More needed to be done to increase uptake of “less adversarial” options.
“What have hitherto been regarded as ‘alternative’ methods of dispute resolution need to be mainstreamed within online processes, and within the culture of the legal system, those who work within it, and the consumers and businesses it serves,” the statement said.
“There has already been significant progress through the HMCTS reform project with civil money claims, damages, possession claims, enforcement, parts of the tribunals, and public and private law family applications moving online.
“But we need to build on this progress including utilising more innovative technologies with an integrated online dispute resolution process.
“As we recover from the impact of the pandemic, we want to make the justice system better able to resolve disputes in smarter ways, combining pre-claim portals and court processes with integrated mediated resolution interventions.”
The statement follows a report last month by the Civil Justice Council which found that there was nothing unlawful about compulsory ADR, so long as litigation remained an option at some point.
It called for ADR to be renamed ‘dispute resolution’, an idea taken up by the MoJ and senior judiciary in the joint statement.
In the call for evidence, which will run for eight weeks, the MoJ stressed that the aim was not “not simply about diverting people from litigation” and the courts would “always remain as an option open to everyone”.
It said the pandemic had put extra pressure on the courts and the wider justice system, and “a consequential effect of more people being equipped to resolve their disputes without needing to wait for a court would be a significant reduction in the burden on the current system, delivering better outcomes for parties and society at large”.
The MoJ said over 2m civil proceedings were started in the county courts in 2019, but fewer than 300,000 were defended and the majority of those were settled or withdrawn before the hearing stage, leaving only 65,000 claims to go to trial.
The MoJ said this “attrition” highlighted how problems might be dealt with differently, particularly as evidence from civil court users showed that the majority would have preferred to avoid court.
Lord Chancellor Robert Buckland said: “We want the public, families and businesses to be able to resolve disputes easily and with as little stress as possible – avoiding often lengthy and costly court battles.”
Justice minister Lord Wolfson added: “With nearly 30 years of experience as a commercial lawyer, I know the benefits of finding amicable agreements early to help parties move on constructively.
“Too often the courts aren’t the best means for reaching such outcomes. That is why we want to improve the range of options available to people to resolve their issues, ensuring less adversarial routes are considered the norm rather than the alternative.”
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