Speech for Jonathan Djanogly Civil Mediation Council Conference

Jonathan Djanogly Speech at the Civil Mediation Council conferenceLowry Hotel, Manchester10 may 2011

Thank you for this opportunity to join you all here at the Lowry. I am pleased to be addressing this particular audience, because – as you will shortly hear – mediation plays a critical part in my plans for the future civil justice system. This is something which I am sure you will support – indeed, I will need your support in taking these ideas forward.

But first, I would like to pay tribute to the work of the Civil Mediation Council. Not just in promoting mediation, but also contributing to embed good practice amongst mediation providers and mediators. As a result, you are ensuring that the public have a greater confidence in the service provided. As we move forward on the proposals that I will be outlining today, we will more than ever, need the CMC’s help in creating a skilled profession, and your help in establishing a system better suited to resolving the conflicts and problems that ordinary people face.

The CMC has become the main voice and platform for mediation providers in the country. I applaud the efforts of the Board in particular for the work they have done in setting an accreditation benchmark for mediation providers. This is important. It gives judges, courts and the public the necessary quality assurance when referring parties to mediation. Similarly, I recognise the work that the CMC has done with the Department for Business Innovation and Skills in developing a registration scheme for workplace mediators. This gives me confidence that mediation is in the right hands, and that we have a large corps of mediators ready and able to take mediation to the next level.

I have long been a believer in mediation. Put simply, it makes sense. Why get involved in an expensive, long-winded and often stressful litigious process, and have your dispute decided by someone else, when you could remain in control and shape the outcome through mediation?

For far too long, access to justice has been equated with “having one’s day in court”. Of course court is the right course of action – in some cases. However, for the vast majority of people that currently use our courts, it is much more about sensible resolution of disputes. We do not want people making a knee-jerk reaction by resorting to the law for issues that are often non-legal in nature.

We want to provide more choice for people, providing better access to effective and proportionate ways of resolving disputes. This must include people being able to resolve their own disputes as much as possible, without having to go to court or spend a fortune on legal representation.

Our system of civil justice already recognises the importance of alternative dispute resolution in the civil procedure rules and in the pre-action protocols. Despite the excellence of our judges, judicial intervention does not always provide the best solution. The coalition government places great importance on helping the public understand the options available to them at an early stage. Litigation can be painful, expensive and confrontational, but by contrast, mediation can explore solutions within a spirit of cooperation, and can bring about better, sometimes more innovative solutions, while maintaining good business relationships.

What have we done so far?

Government supports the use of ADR in a number of different ways. The starting point is practicing what we preach on ADR. As you know, in 2001, the previous Government introduced the ADR Pledge. This was a step forward because all Government departments and their agencies were committed to taking positive steps to use alternative dispute resolution methods. However, we now want to accelerate things much more.

Over the intervening years, the ADR Pledge saved the state an estimated £360m. That is impressive, but I believe there is potential to extend these benefits much further beyond central government. I am exploring ways in which this can be done to best effect., and hope to be announcing our proposed way forward on this in the near future

Furthermore, we are continuing to work with a wide range of external stakeholders because I believe there are very significant savings to be made by others – outside central Government. So, in the coming months I want to build on this by promoting the benefits for businesses and local government of a commitment to alternative dispute resolution.

Another initiative on which I want to build is the Small Claims Mediation Service. Prior to 2007, most of the focus on mediation had been aimed at cases in the fast and multi-tracks, since it was considered uneconomic to try to get parties to mediate in lower value cases. But, following a successful pilot in Manchester, the courts rolled out a service across the whole of HMCS. Today, we have around 20 mediators, who between them have conducted in excess of 10,000 mediations in each of the past two years. This has been made possible through the innovation of telephone mediation, meaning that more than 15,000 parties have been able to settle their cases without the time and expense of having to travel and appear in person at a court building. Satisfaction levels for this service are outstanding – in excess of 90%.

Again, this is good. But I want to go much further. I believe that more can be done to encourage people to play a greater role in resolving disputes themselves, through better choice in the options available to them. The Small Claims Mediation Service shows that there is significant demand for mediation – and that people actually prefer it over having their day in court. And who can blame them, when it is both cheaper and quicker.

Vision for the future

What then is our vision for the future?

We have already introduced changes in Family Justice, working with the judiciary to introduce a pre-application protocol for family mediation information assessment meetings. This came into effect on 6 April and will help to increase awareness and understanding of mediation as an alternative to court. We are not forcing people into mediation but through a meeting with a mediator, separating couples will be able understand the available options and be able avoid a long drawn out court battle.

As far as civil justice is concerned, we've had a system that can be expensive, slow and adversarial, sometimes encouraging protracted disputes, and too often characterised by issues being brought to court that have no place there. I want a justice system that promotes sensible conversation, not senseless litigation. That is why the work you do is fundamental. It's about ensuring that mediation is at the centre of our system, not the margins.

There are too many claims being brought in to the legal system inappropriately. Once in the system they are being resolved too late, too expensively, with business in particular exposed to high and disproportionate costs. Civil justice administration and processes have once again become overly complex, bureaucratic and inefficient.

Individuals are frequently suing businesses for disproportionately large sums, often for trivial reasons and without regard to personal responsibility. This has been fuelled by Conditional Fee Agreements (CFAs) that mean cases can be opened with very little risk to claimants and the threat of very substantial costs to defendants. Partly as a consequence, we have seen problems being brought to the Court room that should have no place there. And it is not just the court room that we are looking at – tribunals are also under review. For instance, I am currently consulting with the BIS department on requiring all employment claims to be submitted to ACAS for conciliation before the tribunal stage.

That is also one of the reasons why we are conducting a root and branch reform of legal aid, and have recently made a number of recommendations on civil funding and cost arrangements, originally set out in Lord Justice Jackson’s review of the Costs of Civil Litigation. These include radically reforming CFAs to restore the balance between claimants and defendants – a shift that should start to challenge one of the roots of the compensation culture.

That is also why we are also taking such a strategic look at the delivery of civil justice to see if it can be better designed to respond to what matters most to citizens – better information, earlier dispute resolution options, preventing the escalation of cost.

My department has therefore put in place a strategy for reform of the civil justice system around the principles of:

proportionality – ensuring that processes provide value for money;
personal responsibility – citizens taking greater responsibility for resolving their own disputes;
streamlined procedures – for speedy justice delivery; and
transparency – ensuring that there is clear information on the dispute resolution options.

You may be aware of my recent consultation on Solving disputes in the county courts: creating a simpler, quicker and more proportionate system, which was published on 29 March 2011.

The consultation contains a raft of measures for getting the civil justice system right, so that people and businesses can deal with their problems quickly, effectively and at a proportionate cost.

Let me say a few words about some of the proposals, which I fully believe will move mediation centre stage within our civil justice system.

To build on the success of small claims mediation we are now consulting on the introduction of automatic referral to mediation for all small claims cases (possibly up to £15,000). For the first time, mediation would become part of the court process. This would allow many more cases to settle without the stress of a court process, and without the parties ever having to travel to court. Of course, cases that do not settle, and require judicial intervention, will still be able to go on to a hearing before a judge.

For higher value claims up to £100,000, we are proposing to introduce mediation information sessions. This would allow parties the opportunity of hearing direct from a mediator the benefits of mediation. I will be relying on you to use your skills to sell the benefits of mediation in those sessions, and hopefully convert many into actual mediations.

We accept though that there will be certain circumstances or certain cases that may not be applicable to automatic referral or to mediation information sessions. So, we are asking consultees whether some provision should be made for exemptions to these processes. However, we want to ensure that such exemptions are tightly drawn so that opting out does not become the norm.

You will already be aware that we will are implementing the EU Directive on civil and commercial mediation by 21 May 2011. Some of the provisions of the Directive have already been reflected in our rules of court. However, the Directive only covers cross-border disputes. So, we are also consulting on the introduction of similar measures for domestic mediations, for example:

ensuring that the content of written settlements negotiated at mediations can be made enforceable without the need to issue lengthy court proceedings;
protecting mediators and mediation provider organisations from being compelled to give evidence, subject to very limited exceptions; and,
ensuring that parties are not statute barred from commencing proceedings when they have been in mediation.

Taken together with an increase in the small claims track limit, and a wide range of other proposals, this consultation represents the most radical overhaul of civil justice since the Woolf reforms more than ten years ago.

There are benefits in these proposals for all. Benefits for businesses; benefits for individuals in dispute; and benefits for the public sector.

I would urge you all to have your say, and respond to the consultation. The closing date is 30 June, so you still have time.

Conclusion

So let me end where I began. It is important to this government that people are able to resolve their own disputes without getting caught up in protracted and expensive litigation. We want to ensure that people have access to early information and assistance when they need it, so that problems can be resolved long before they escalate into formal legal action.

That is why alongside the proposals I have mentioned, we are also improving the information we offer to the public through new online information on Directgov, the government’s central website for citizens. Our new content is designed to inform the public about the full range of civil dispute resolution options available to them including, mediation, use of Ombudsman, statutory regulators etc. This will help people make better choices about how they resolve their disputes.

I will very much be looking forward to working more closely with the public, businesses, the judiciary, the advice sector and dispute resolution providers and you, the Civil Mediation Council, so that together we can deliver a new approach to civil justice.

Thank you, and I wish you a very successful conference today.