In the face of the Covid-19 Pandemic, it has been encouraging to see ADR professionals across the UK and Ireland trying to work out ways to deliver their services, at a time when courts have been brought to an almost stand still.
One of the most famous of legal equitable maxims is that of ‘justice delayed is justice denied’. We only need to cast our minds back to the large reform brought about in the England and Wales jurisdiction byway of the Lord Woolf Report, largely adopted within the Civil Procedure Rules of 1998. These extensive rules governing the court system were primarily driven by two key elements: to reduce the cost and to avoid unnecessary delay. Other jurisdictions adopted their own measures but with similar aims.
While the Woolf Report identified numerous ways to deliver this, one key cornerstone was the role that Alternative Dispute Resolution (ADR) should play. How would ADR help? Well, in a couple of key ways. Take for example mediation. Here, generally, a mediator will be agreed to and appointed by the parties to the dispute, allowing the matter to be heard within a few short weeks. When this is compared with the litigation route where it takes multiple months and very often years for a matter to get to hearing, it is not hard to see how mediation is capable of addressing the issue of delay.
Secondly, there is the issue of costs. While a solicitor is obliged to keep a client informed as to the costs that are being incurred there is the fact that the solicitor is left in the unenviable position of constantly moving goal posts. How many case review hearings will there be? Will there be disputes over discovery leading to interlocutory hearings? What is the exposure to be fixed with considerable costs at each juncture? The list goes on. So, while an estimate can and generally is provided, it can easily be dwarfed as the case meanders through the court process. What of costs in, for example, mediation? From the outset the parties to the dispute understand the complete cost implication and they share the costs involved in the process. Generally, even where the matter is being handled by a mediator who is at the pinnacle of their career such as a QC or SC, the costs will be a fraction of those incurred if the matter was to proceed to litigation.
Despite these two clear positives, however, the ADR profession faces challenges going forward. The first of these is to understand and address why these ADR services are not more prevalent when disputes arise. Given the clear advantages and the identification of it as a solution by leading and learned Judges, it is still lagging behind both where it should be and the more forward-thinking jurisdictions such as Australia and Canada.
Encouragingly,Ireland has made some strides forward with recent legislation ensuring parties to a dispute are appropriately advised as to the benefits of mediation by their legal advisors. In Northern Ireland there was a recent review carried out by Sir John Gillen culminating in a Report recommending, amongst others, mediation as a method to assist with the growing pressure on the legal system there. This however fell short of the positive obligation created in the Republic of Ireland. It still remains to be seen how mediators and ADR professionals can continue to develop what they offer so as to become more mainstream to those who find themselves in dispute.
The second is, while the courts remain at a standstill with a growing backlog, how can ADR professionals ensure the same does not happen to them and their service? Many within the mediation profession in the face of the frustrating circumstances brought about by the Covid pandemic have turned to online methods. This has been ad hoc in its approach by cobbling together various offerings that it has to be said, were not designed with mediation in mind.Whilst still in the grips of the Pandemic one organisation based in Northern Ireland, CCODR, launched a bespoke online platform. The platform aims to provide ADR professionals with a complete suite of secure online tools to manage every aspect of their practice. So, for example, its video conferencing has end-to-end encryption, which is rare in that industry, ensuring practitioners are complying with their GDPR obligations.
With this type of innovative platform open to ADR professionals it is clear that with the second of these challenges they can steal the march as the court systems struggle to find ways to hold hearings. Indeed, perhaps its through innovation such as this that practitioners can ensure that justice is neither delayed nor denied.
John Keers BL, Co-Founder & Director
John Keers is a practising mediator, qualified barrister and Course Director at Ulster University for the LLM in International Commercial Law and Alternative Dispute Resolution where he lectures extensively in the area of ADR and ODR. John is also a Co-Founder and Director of the Consumer Code for Online Dispute Resolution.