By Spenser Hilliard, Chair of the Bar Council ADR Panel

Both the Ministry of Justice and the Senior Judiciary have for some time been expressing their strong support for integrating ADR into the justice system. The Civil Justice Council concluded in its report dated 12 July 2021 that mandatory ADR is lawful and should be encouraged. More recently the MoJ have issued a consultation on “Increasing the use of meditation in the civil justice system.”

Potentially, these developments create many new opportunities for the Bar. Barristers have the skillset, with training, to become excellent mediators and already many of the UK’s leading mediators are members of the Bar. In addition, with many more clients signposted by the courts towards mediation, they will generally need representation at the mediation creating more work potentially for the Bar.                                            

Over the course of their training and practice, barristers develop a unique set of skills, acquiring the ability to rapidly master the detail of complex matters and to understand and analyse the legal nuances involved. These skills are invaluable in gaining the trust of mediation clients, without which settlement is unlikely. Sometimes overlooked is the psychological awareness, honed through years of experience of cross examination that give barrister mediators an invaluable edge in getting a deal over the line when the parties feel they are deadlocked. UK barristers enjoy enormous success in the highly competitive world of international arbitration because their skills are so highly regarded, not because of any compulsion.

Whilst welcoming the opportunities that these proposals offer; the Bar Council has reservations as to whether compulsion is necessary or helpful. Voluntary engagement by the parties is an important aspect of mediation’s success and in removing the voluntary aspect the process is inevitably diminished.

A nod towards concerns about compulsion can be found in the Master of the Rolls' more recent speeches. In his Roebuck lecture on 8 June 2022, he acknowledges that mandatory mediation has “long been a controversial idea” and emphasises that it was “obvious” that the so-called digital funnel would “ultimately render the issue of mandation academic”.                                        

The MoJ consultation shows that the Government still have quite a lot of work to do to make the Small Claims Mediation Pilot a success. The Bar Council suggests that the implementation of the Government’s pilot proposals should be subject to various provisos:

  1. firstly, the use of sanctions should be limited, applied only in circumstances of wholesale failure to attend, and the mediation itself needs to remain confidential;
  2. secondly, the Small Claims Mediation Service should be properly funded, and the mediators should be given proper training;
  3. thirdly, there must be a proper complaints and (where relevant) appeals procedures implemented;
  4. fourthly, the system should run efficiently, thus, to not increase any delays to final determination following trial at court. The scheme should be assessed as a success only if it does, indeed, reduce the backlog and the time taken between issue and final determination; and
  5. finally, this should be trialled and reviewed after a period of two or three years, and should not be considered for extending beyond the small claims track until this point.          

If the Ministry of Justice’s proposals are properly trialled and prove to be a success then, as the MR has predicted, the issue of mandation may “ultimately be rendered academic”. In the meantime, the Bar Council, through its barrister mediators and mediation advocate members, has offered its expertise and support to the MoJ in pursuing plans to integrate ADR into the civil justice system, including volunteering to assist with training, standards setting and appraisal. If these reforms are properly handled there may be no need for the blunt instrument of compulsion.