"Taking the A out of ADR" : A Jersey Perspective

Posted on September 27, 2016
Written by Caroline Dutot

At a Mediation Symposium in London this week Lord Justice Briggs spoke of “Taking the A out of ADR”.

ADR, or alternative dispute resolution, is a method of resolving a dispute outside of litigation before the courts.

ADR as a concept is made up of a number of subsets, including mediation, arbitration and early mutual evaluation.

Lord Justice Briggs has been responsible for the civil courts structure review in England, with his final report being published in July 2016. The summary of the review issued by the Courts and Tribunals Judiciary in the UK talks of there being a need to create an Online Court for claims up to £25,000 designed for the first time to give litigants effective access to justice without having to incur the disproportionate cost of using lawyers. The driving force behind this recommendation is to make civil courts more generally accessible to individuals and small businesses, providing a resolution of small to modest disputes at a proportionate cost. It is planned that the Online Court will be operational by 2020.

The thinking behind the online court, is that following receipt of an online court application and supporting documentation, cases of less than £25,000 (a figure that could be increased in the future) will be triaged and case managed by a case officer.  The case officer, with support from judges if required, will identify to the parties the most appropriate next step. In appropriate cases, this next step could be a voluntary telephone, online or private mediation or an early mutual evaluation. If resolution is not achieved through one of those mechanisms it is envisaged only then that a matter will go before a judge for determination.  This approach broadly follows a model utilised in the Civil Resolution Tribunal in British Columbia in Canada, which looks to move away from the strict concept of a court towards a centre of civil dispute resolution.

Lord Justice Briggs is advocating for the introduction of ADR into the mainstream of civil disputes and, as is the case in other jurisdictions, making it the “cultural norm“ to take part in ADR. This is what Lord Justice Briggs means when he talks of taking the A (for ‘alternative’) out of ADR.

The Jersey Way

Jersey’s Chief Minister is currently responsible for a review into Access to Justice in Jersey. One of the aims of that review being to make proposals for improving access to justice, including in the resolution of disputes and to considering issues of affordability for justice generally.  The Panel carrying out the review are specifically tasked with gathering evidence on alternative dispute resolution.  As part of the discussion so far, evidence has been heard as to whether there would be benefit in extending existing court and community mediation services. The use of mediation already exists in certain quarters in Jersey, including in respect of petty debts claims, claims before the employment tribunal, in family cases and community mediation via the Citizens Advice Bureau.

Perhaps the Online Court, in whole or part, might provide us with some further inspiration and reflection in that regard.  Whether or not, Jersey is prepared to look fully at the concept of an Online Court, the principle of pulling ADR more fully into the mainstream court process seems one that could be fairly easily achieved.

 

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