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Mediation, ADR and an inquisitorial approach: changing our courts?

Mediation, ADR and an inquisitorial approach: changing our courts?

Posted by justis1 | 10 June 2014

The court structure of the UK is one of the most stable in the world. The court process and the structure of appeals is one with which every law student is familiar (see the diagram below). Students know that despite differing starting points, cases can make their way up to the Court of Appeal and then to the Supreme Court. As definite as the structure of the courts is the adversarial nature of the process. For years the English legal system has been dominated by litigation.

Lord Neuberger

Lord Neuberger

At a time of proposed budget cuts the adversarial system has been called into question. There have been recommendations for increased mediation and arguments for a more inquisitorial approach. Below we look over some of the suggested alterations and discuss whether they could impact on the structure of the courts.

A key aspect of the Ministry of Justice’s move to save money has been an increased focus on reducing litigation and increasing Alternative Dispute Resolution (ADR). Plans to reduce legal aid will inevitably impact on civil proceedings; how this will impact the wider court process is as yet unclear.

Lord Neuberger: mediation as an “important adjunct” to the civil justice system

Lord Neuberger addressed the rise of mediation in his 2010 Gordon Slynn Memorial lecture. He noted that mediation and ADR play “a significant role in the satisfactory resolution of disputes. And, rightly used, in terms of the appropriate case and appropriate timing, mediation saves a lot of money, court time, heartache, and effort.” However, though he termed himself a “keen supporter”, he emphasised that it should be seen as an “important adjunct to” the civil justice system.

Lord Neuberger stressed that mediation and ADR should not usurp the role of formal adjudication, that, rather, they were an alternative that “gain their value because of, and only because of, the existence of formal adjudication and the branch of the state which delivers it. Without the civil and family justice systems there would be no mediation or ADR.”

While it is being determined how large a part mediation will play in future civil proceedings, it is important to remember Lord Neuberger’s cautionary advice. Any push for an increase in mediation must be balanced against access to the civil justice system: “If we expand mediation beyond its proper limits as a complement to justice we run the risk of depriving particular persons or classes of person of their right to equal and impartial justice under the law.”

The push towards mediation and ADR is likely to continue. However, provided that Lord Neuberger’s guidance is respected, with “ready and effective access to the civil justice system” retained, the court structure and appeals process beyond it is unlikely to differ.

Lord Thomas: how is the justice system to operate an inquisitorial process?

Lord Thomas addressed the issue more recently in his reshaping Justice lecture. He noted that there has not been a reshaping of the justice system since the “great 19th-century reforms, which saw the creation of the High Court and Court of Appeal.” He emphasised the need for reshaping “to deal with the fundamental change that is occurring in the role of the state”.

He noted that there has been “a significant increase in the number of litigants in person” due in part to the retrenchment in state expenditure and the relatively high cost of legal fees, and suggested “introducing a more inquisitorial form of process in civil proceedings where both or at least one party is unrepresented.” Lord Thomas acknowledged that moves towards a more inquisitorial form of process have been discussed previously and that some see it as “a form of process alien to our adversarial tradition”, which “cannot properly be accommodated within it”.

Though he did not argue in favour of any particular reform Lord Thomas did stress that in the current age of austerity “These positions need careful consideration. Questions such as how is the justice system to operate an inquisitorial process effectively need to be considered … What effect would it have on the structure of our courts, and courts administration? What would be its cost?”

Both increasing mediation and changing the nature of the court system to involve a greater degree of inquiry have the capacity to change the court process. These proposals sit alongside calls to alter “the boundaries of cases where trial by jury is available” and to reconsider “the allocation of work to the different Criminal Courts”.

During a climate of austerity these alternatives need to be considered. While the impact these reforms could have is difficult to determine, it is important to continually acknowledge that if implemented, they could significantly alter the structure and processes of the courts.




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