Dispute resolution in England and Wales: Call for Evidence

Closes 31 Oct 2021

Introduction

For far too long the so-called “alternative” approaches to court2  have been seen as an add-on or diversion for people seeking to resolve a dispute. We recognise that most disputes are already dealt with outside the court system. However, for those within it or about to come within it, we want to ensure that the most appropriate form of resolution which may not be court, is accessible.  

We want to support people to get the most effective resolution without devoting more resources than necessary – financial, intellectual and emotional - to resolve their dispute. Creating more proportionate and constructive routes to resolution avoids the need for these resources to be expended, saving the user’s time, as well as reducing their levels of stress at an already difficult time.

Our ambition is to mainstream non-adversarial dispute resolution mechanisms, so that resolving disagreements, proactively and constructively, becomes the norm. This is not simply about diverting people from litigation. We want to build a more proportionate system by giving people a fuller, more integrated, range of routes to get the best outcomes for their issue. Helping people to access the support they need at the right time to achieve a resolution, bringing disputes to a timely close without such frequent need for court-based litigation. The courts will, however, always remain as an option open to everyone; and we recognise that there will always be cases where people do need to go to court.

This Call for Evidence is the first step on that journey. Your responses to this document will improve our evidence base to inform the development of the Government’s policy interventions.

The scope of this work includes the civil, family and administrative jurisdictions. The criminal jurisdiction is not in scope. We recognise that there is substantial breadth and diverse content and character across these areas. Different types of case will of course involve different issues and circumstances that will need to be considered in detail when it comes to developing policy options.

This Call for Evidence is seeking evidence from all interested parties, the judiciary, legal profession, mediators and other dispute resolvers, academics, the advice sector, court users.

We are particularly interested in collecting evidence from individuals or organisations with data to share on the relevant questions; or those who have had experience of dispute resolution within and outside of the courts system to support the development of more effective dispute resolution mechanisms. We welcome frontline insights with tangible examples.

The issue

Improving dispute resolution offers opportunities to better the justice system across the civil, family and tribunals jurisdictions. Litigation is adversarial and can be subject to wide-ranging and detailed process and rules which can make it a complex, time-consuming and expensive process.

For many people, it may not be the most appropriate route to resolve their disputes because of the type of the case. We want to support parties to use the best processes to achieve high quality, timely, cost effective, proportionate and enforceable resolution to their disputes.

Additionally, the Covid-19 pandemic has put extra pressure on the courts and the wider justice system, and a consequential effect of more people being equipped to resolve their disputes without needing to wait for a court would be a significant reduction in the burden on the current system, delivering better outcomes for parties and society at large.

Legal needs studies show that most legal problems are dealt with at an early stage without engaging formal justice services or the courts. Despite this, over 2 million civil proceedings were started in the County Courts alone in 2019, the majority of which were undefended “default” judgements allowing creditors to apply for enforcement.

Nearly 300,000 claims were defended and the majority of those were settled or withdrawn before the hearing stage (just under 65,000 claims went to trial in 2019)3. While the courts fulfil a vital role for resolution of many disputes, this attrition does highlight areas where problems might be dealt with in different ways. Evidence from surveying civil court users4 shows that the majority would have preferred to avoid court and see court proceedings as a last resort (68% overall: 57% for damages claimants but rising to 80% and 81% among money and possession claimants respectively).

This programme dovetails with the work of the Civil Justice Council which published its report in 20185 on Alternative Dispute Resolution (ADR), setting out extensive recommendations on promoting the awareness of ADR, both in the general public, professions and judiciary;  better regulation for ADR service providers; and a form of automatic referral to ADR. Although its terms of reference are restricted to the civil jurisdiction, there is read-across to the family and the tribunals system. The Civil Justice Council published their latest report on ADR in June 20216 advising that it was both compatible with Article 6 and desirable in certain circumstances to make some forms of ADR compulsory.   

New court-based initiatives have been started in several jurisdictions, notably the Civil Online Money Claims service which integrates use of HMCTS’ Small Claims mediation service and is piloting opt-out mediation for low value civil cases. Pilots have also been introduced that extend mediation to higher value civil claims. In the family jurisdiction it is now – in most private law cases – a legal requirement to attend a Mediation Information and Assessment Meeting (MIAM) before making an application to court. The introduction of the family mediation voucher scheme enables a financial contribution of up to £500 towards the costs of mediation for eligible parties. Additionally, the Financial Dispute Resolution appointment has become an established feature of matrimonial financial remedies cases for over twenty years and has proved extremely successful in facilitating settlement of proceedings without a fully-contested hearing. The Whiplash Reform portal, which aims to reduce the number and cost of whiplash claims, has introduced a new pre-court process. This online Portal seeks to enable claimants and defendants to settle claims without the need for legal representation or to go to court. Another model of dispute resolution is the use of ACAS’s early conciliation service for workplace disputes, introduced in 2014, under which any party intending to bring an Employment Tribunal complaint must inform ACAS, who will offer them free early conciliation as an alternative to court.  

The scope of this call for evidence includes pre-hearing dispute resolution and aligns with the core outcomes central to the Legal Support Action Plan:7 to prevent people's problems from escalating and to divert people away from parts of the justice system that they do not need to interact with; encourage the use of technology and innovation in ways that ensure people can access support in the way that best suits them; and continue to build an evidence base to inform effective policy interventions.  This exercise also builds on the evidence gathered as part of the Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and which was published in February 2019.

We will build on these strong foundations as we consider the changes necessary to move towards a holistic system of dispute resolution, one in which users are supported and directed towards the dispute resolution option that is right for their circumstances. Therefore, this evidence will be a vital contribution to our future work.

The findings of the Call for Evidence will be made available in summarised form. No personal or identifiable information will be made available or used for other purposes.

Throughout this Call for Evidence we refer to “dispute resolution” processes as encompassing all methods of resolving disputes in the civil, family and administrative jurisdictions, apart from litigation. These include, but are not limited to, mediation, conciliation, arbitration, Ombudsmen schemes and similar, whether conducted via online platforms or with the assistance of other technology or not.  We are not seeking views on the operation of the court service, except in so far as it engages with these other forms of out-of-court resolution processes.

 

2. We use ‘court’ to refer to courts and tribunals unless stated otherwise. 

3. https://www.gov.uk/government/collections/civil-justice-statistics-quarterly 

4. Civil Court User Survey (2015) 

5. https://www.judiciary.uk/wp-content/uploads/2018/12/CJC-ADR-Report-FINAL-Dec-2018.pdf 

Civil-Justice-Council-Compulsory-ADR-report.pdf (judiciary.uk) 

7. Legal Support: The Way Ahead (publishing.service.gov.uk) (2019)