Promoting Personal Injury Mediation

Introduction

The Federation of Insurance Lawyers (FOIL) hosted a debate in London on 15th January 2009 entitled What is stopping Personal Injury Mediation? I was present at the debate and was encouraged by the fact that I did not hear a single voice opposed to the increased use of mediation in personal injury litigation. Although areas of “blame” were identified and acknowledged there was not a clear plan of action at the end of the debate. We did not answer the crucial question “What step are we going to take to increase Personal Injury Mediation?”. I wish to propose an answer.

The Master of the Rolls, Sir Anthony Clarke was a panel member at the debate. He said that anybody could ask the Rules Committee to consider a rule change and that maybe we should insist that parties give their reasons for not using mediation in the Allocation Questionnaire. My proposal is that all parties concerned with promoting personal injury mediation submit one formal request to the Rules Committee to amend the Allocation Questionnaire in the draft form attached to this document.

The Current Problem

In April 2008 the Allocation Questionnaire was amended to its current form. It introduced questions which were obviously aimed at encouraging the parties to actively consider alternative methods of dispute resolution. It even asked parties if they wanted the court to arrange a mediation on their behalf through the National Mediation Helpline. Welcome though the changes were parties could avoid engaging in any form of ADR by answering the questions in the following way:

Q.1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt to settle at this stage?
A.1. “Yes”

Q.2. If Yes, do you want a one month stay?
A.2. “No”

Q.3. Would you like the court to arrange a mediation appointment?
A.3 “No”

Question 4, which asks the parties to state their reasons why they consider it inappropriate to try and settle claims at this stage could be ignored because of the answer “Yes” to Question 1. The result is neither the court nor the parties need take any steps towards settlement through ADR so the objective of the amendments is not met.

Further Proposed Changes to the Allocation Questionnaire

I propose an amendment to the Allocation Questionnaire which would result in a positive step being taken by the court dependent upon the parties responses to the questions. I would change questions 1 to 4 from page one of the current Allocation Questionnaire as follows:-

1. Given that the rules require you to try to settle the claim before the hearing, do you want to attempt settlement at this stage?   Yes / No
   
2. If Yes, which one of these options do you request:
   a) A one month stay to allow the parties to attempt to negotiate settlement or,
   b) The standard ADR Order*  or,
   c) The court to arrange a mediation through the National Mediation Helpline?
(A fee will be payable to the mediation provider appointed by the National Mediation Helpline.)
   
3. If No, give your reasons, without prejudice save as to costs, upon which you rely for saying that the case is unsuitable for settlement by ADR. You should be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.

Reasons: …

The standard ADR order referred to is taken from Appendix 7 of the Admiralty and Commercial Court Guide, 7th Edition, 2006 and a copy is attached below. Something must happen as a consequence of how the questions are answered. The possibilities are :

a)  The court will order a stay or,
b) The court will make the standard ADR order or,
c) The court will refer the matter to the National Mediation Helpline for them to arrange a mediation or,
d) The party will provide it’s reasons to the court why the case is unsuitable for settlement by ADR.

In case d) the court can consider the reasons given when making the directions order and take appropriate action if it does not consider the reasons to be valid. If one party proposes a) and another b) or c) then the stay could be tried first and if it failed the referral to ADR would follow.

Reasons for the Proposals

In Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576 the court discussed two court orders currently being used to encourage ADR. Dyson LJ said :

“30. An ADR order made in the Admiralty and Commercial Court in the form set out in Appendix 7 to the Guide is the strongest form of encouragement. It requires the parties to exchange lists of neutral individuals who are available to conduct “ADR procedures”, to endeavour in good faith to agree a neutral individual or panel and to take “such serious steps as they may be advised to resolve their disputes by ADR procedures before the neutral individual or panel so chosen”. The order also provides that if the case is not settled, “the parties shall inform the court what steps towards ADR have been taken and (without prejudice to matters of privilege) why such steps have failed”. It is to be noted, however, that this form of order stops short of actually compelling the parties to undertake an ADR.

31. Nevertheless, a party who, despite such an order, simply refuses to embark on the ADR process at all would run the risk that for that reason alone his refusal to agree to ADR would be held to have been unreasonable, and that he should therefore be penalised in costs. It is to be assumed that the court would not make such an order unless it was of the opinion that the dispute was suitable for ADR.

32. A less strong form of encouragement is mentioned in the other Court Guides to which we have referred at para 6 above. A particularly valuable example is the standard form of order now widely used in clinical negligence cases, and which was devised by Master Ungley. The material parts of this order provide:

”The parties shall by consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.

The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable.”

33. This form of order has the merit that (a) it recognises the importance of encouraging the parties to consider whether the case is suitable for ADR, and (b) it is calculated to bring home to them that, if they refuse even to consider that question, they may be at risk on costs even if they are ultimately held by the court to be the successful party. We can see no reason why such an order should not also routinely be made at least in general personal injury litigation, and perhaps in other litigation too. A party who refuses even to consider whether a case is suitable for ADR is always at risk of an adverse finding at the costs stage of litigation, and particularly so where the court has made an order requiring the parties to consider ADR.”

I changes I propose effectively adopt the Ungley Order into the Allocation Questionnaire with the benefits described by Dyson LJ at paragraph 33. He saw no reason why these orders should not be routinely made in personal injury litigation and this change would bring that about. The amendments also incorporate “the strongest form of encouragement” from the Admiralty Guide in appropriate cases where the parties have asked for an ADR order, possibly because they do not wish to use the National Mediation Helpline scheme or they want to use a from of ADR other than mediation. The ADR order does not preclude parties from eventually going to trial if ADR is unsuccessful and so is unlikely to breach Article 6 of the European Convention on Human Rights.

The Master of the Rolls has made it clear that he opposes making costs orders against parties who fail to consider mediation because of his fear that to make such orders regularly would start a new round of satellite costs litigation. I believe these amendments to the Allocation Questionnaire would help avoid that situation.

Conclusion

It was a clearly held view at the debate that exposure to mediation will of itself create a growth in its use as lawyers, insurers and their clients see the benefits that it can offer. I propose that these changes be implemented as soon as possible.

Ideally the changes should be supported with education for case management judges, lawyers and insurers but should not be held up for that to be arranged. There are already sufficient mediation providers who will willingly fill the educational training needs.

The Next Step

I intend to send this proposal to the Rules Committee at the end of February 2009. If you are in support and wish me to add your details to a list of parties in support of the proposal please let me know – see my contact details. If you wish to comment please do so below.

If you are involved with any project that you believe would be more effective in reaching our mutual goal of increasing the use of mediation in personal injury litigation and you strongly believe that my proposals my hinder that then please contact me. If I am persuaded my proposals are inappropriate for whatever reason I will make that known on this site.

APPENDIX 1 – Proposed amendments to the Allocation Questionnaire

APPENDIX 2 – Draft Standard ADR Order

Related posts:

1. Promoting Personal Injury Mediation – Ministry of Justice response
2. Persuading opponents to mediate in personal injury claims.
3. Mediation – second nature to litigators, litigants and the courts
4. When “win” means “lose” in Personal Injury Litigation : Part II
5. Client care and personal injury mediation