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Bringing it home?

Mediation iStock 000008373355XSmall 146x219John Pugh-Smith and Katie Scott consider conflict management and resolution, and analyse alternatives to litigation for local government.

This Article is based on our joint paper originally presented at the Annual Lawyers in Local Government Conference on 9th March 2018 at Bristol. From our perspectives, both as specialist public lawyers and mediators it considers ways of settling disputes better and more swiftly, both prior to or during proceedings, by the use of processes such as structured negotiation, mediation and arbitration. Collectively, these processes are most frequently referred to as ‘alternative dispute resolution’ or “ADR”. We wish to acknowledge the help provided by two highly experienced commercial, non-lawyer, mediators, Amanda Bucklow and Mark Linnell of Moot Hill Partners LLP [1] in its content and the initial presentation of the original paper.

Given the broad spectrum of disputes that arise in local government this article does not attempt to be a comprehensive consideration of the topic. Rather, it focuses on ADR in the public law context and pays particular regard to its use in the current legal landscape in the following practice areas:

  • Judicial Review
  • Planning
  • Compulsory Purchase
  • Court of Protection

It does not consider statutory ADR schemes such as complaints procedures and complaints to the Ombudsman. While the former may lead to the subsequent use of mediation the latter is a separate and distinct dispute resolution process both with its strengths and weaknesses [2].

It is structured as follows:

  • The rise of ADR
  • What is ADR
  • The case for mediation and facilitation in the public law context
  • The current legal landscape

The rise of ADR

Public lawyers have, since the Court of Appeal handed down judgment in Cowl v Plymouth City Council [2001] EWCA Civ 1935, been aware of the requirement to consider whether the statutory complaints procedure is an adequate alternative remedy to judicial review. Judicial review is after all, a remedy of last resort. We consider the issues that practitioners must consider when determining whether there is an adequate alternative remedy which may resolve the dispute.

Since Lord Woolf’s Access to Justice Report in 1996 there has been an increased enthusiasm for all types of ADR. This has been reflected:

  • in the procedural rules governing litigation drawn up by the policy makers, in particular the judicial review pre-action protocol which has incorporated provision since ADR in March 2002;
  • by government with The ADR Pledge (2001) - a formal pledge made by the then Lord Chancellor, Lord Irvine, committing government departments and agencies to settling legal cases by ADR processes whenever the other side to litigation agrees to it, regarded by the Coalition Government to have saved an estimated £360 million at the time of its replacement Dispute Resolution Commitment (2011), and, re-stating that: ‘(Mediation) should be seen as the preferred dispute resolution route in most disputes when conventional negotiation has failed or is making slow progress’
  • in the Courts, by Judges staying cases to enable ADR to take place as well as, (in some cases), penalising litigants for failing to engage in mediation; and
  • in practice, by the growth of the number of trained mediators, arbitrators and adjudicators (for example at 39 Essex Chambers we have many accredited mediators and arbitrators).

Mediation is perhaps the most familiar form of ADR, and becoming increasingly popular. Yet despite its popularity in many practice areas (such as in the commercial or construction context where mediation is now commonplace) the Public Law Project, in its 2009 empirical study on mediation in public law, found the take up of mediation as an alternative to judicial review to be low. They concluded that the reason for this was due to lack of knowledge by public lawyers of the benefits of mediation. It seems to us that this is changing, certainly in the last few years Members of Chambers have become increasingly involved in mediating a wide range of public law disputes.

What, exactly, is 'ADR'?

Forms of ADR fall broadly into two categories:

  • those like arbitration where the results of the procedure provide a final and binding decision to the dispute, and
  • those which are non-binding – such as mediation, early neutral evaluation [3] and adjudication.

In 2011 the Public Law Project published ‘Mediation in Judicial Review: A Practical Handbook for Lawyers [4]. It provides this definition of mediation:

Mediation is a process of assisted negotiation guided by a trained, independent professional – the mediator. It gives the parties in dispute and their representatives an opportunity to agree jointly the details of any settlement after an examination of their respective needs and of the options and possibilities for resolution. The mediator does not make a determination of the issues in dispute or impose a settlement on the parties, but aims to assist the parties to identify and agree a settlement that is responsive to their needs and with which they commit to comply.

There are a number of mediation models and they reflect process design to fit the people and the issues. Where behaviour change is the objective for example in community mediation, practitioners will use a predominantly facilitative style. In commercial mediation, practitioners will move along a spectrum of facilitation (often in the early stages) to evaluation but that will only be successful once the principles of communication, information sharing, rapport and negotiation have been well established by the mediator.

Parties must agree the basis upon which the mediation will take place. Approaches to mediation are varied, but it is suggested that they all have the following principles in common:

  • independence and impartiality of the mediator
  • participation in good faith by all parties
  • confidentiality of the process
  • need for authority to settle on the part of the participants.

Confidentiality of discussions at mediation meetings is one of the key elements of mediation that make it such an attractive option. It is usually seen as essential in order to encourage the parties to engage in open dialogue. It is a key principle therefore that anything said during the discussions cannot later be used as evidence in litigation, and can be understood as being akin to ‘without prejudice’ negotiations. Parties can, of course, both waive that confidentiality - see for example Earl of Malmesbury v Strutt & Parker [2008] EWHC 424 (QB). Public bodies are however well advised to make it clear from the start that the confidentiality of the process is subject to their public duties, for example if information is obtained during a mediation that gives rise to the public body’s duty to raise a safeguarding alert, then the confidentiality of the process will not be a bar to such an alert being raised. Equally, where there is a need to publish an outcome, the parties may agree a public statement as part of the negotiations.

Any agreement reached at a mediation is not binding on the parties until an agreement is reduced in writing and signed by the parties, at which point it becomes enforceable as a contract in the usual way. Where mediation forms part of or runs parallel to arbitration or litigation which is underway in respect of the same dispute, the parties are advised to, and usually do, incorporate their agreement in a formal consent order or consent judgment so as to achieve the same binding effect as would be achieved by arbitration or litigation.

The Public Law Mediation Handbook suggests that mediated settlement agreements should cover:

  • actions agreed and timing of implementation
  • how to deal with costs
  • withdrawal of the claim where applicable
  • confidentiality and publicity

It is also open to the parties to make the settlement agreement confidential. In practice, this can prove impracticable where:

  • The parties may need to share information and in particular what is agreed with family or others.
  • The public body may need to report to those to whom they are accountable.

All of these issues must be explored with the parties at the mediation and reflected first in some ground rules, and secondly in the settlement agreement. The principle of confidentiality is the default condition and can be negotiated as with any other term of settlement. In the case of public bodies, it is possible that this is not explored enough and may be an unnecessary hurdle to wider use. This topic should form part of any pre-mediation assessment and may be influential in identifying more cases that would benefit from mediation.

The case for mediation and facilitation in the public law context

Dispute avoidance

Mediation is generally considered once a dispute has crystallised. Increasingly, however, the mediation process is being used more strategically for early dispute management and with impressive results. This is where early review and intervention are deployed with the aim of identifying and managing conflicts. The principles underpinning the process include: restarting communication between the parties; providing a ‘safe’ arena for open discussion about the problems and the options; encouraging consideration of options for settlement that can include those a court could not consider. Experienced practitioners frequently see the damage to contracts and valuable relationships and understand that structured negotiation at an earlier stage would probably have conserved more resources a good deal sooner and achieved a better commercial outcome. The involvement of an independent professional early on can help the parties rationalise the legal issues, rebuild the trust and the good will necessary to find agreement, assist with risk assessment and support the parties in making good decisions for themselves and their respective organisations. As facilitators, they can chair public meetings or oversee consultation exercises bringing an objective eye and guidance to ensure that issues are addressed and not buried.

Co-incidentally, this type of pragmatic and proactive approach reflects the aspirations contained in the government’s Dispute Resolution Commitment, announced by the then Justice Minister, Jonathan Djanogly MP, on 23 June 2011. It included:

  • Being proactive in the management of potential disputes and in working to prevent disputes arising or escalating, in order to avoid the need to resort to the use of formal dispute mechanisms wherever possible.
  • Using prompt, cost effective and efficient processes for completing negotiations and resolving disputes.
  • Choosing processes appropriate in style and proportionate in costs to the issues that need to be resolved.
  • Recognising that the use of appropriate dispute resolution processes can often avoid the high cost in time and resources of going to court.
  • Educating employees and officials in appropriate dispute resolution techniques, in order to enable the best possible chance of success when using them

Mediation generally

The case for mediation generally is widely accepted. Quoting Lord Neuberger’s key note address on 12 May 2015 to the Civil Mediation Council’s Annual Conference:

‘First mediation is quicker, cheaper and less stressful and time-consuming than litigation. Secondly, mediation is more flexible than litigation in terms of potential outcomes. Thirdly, mediation is less likely to be harmful to the long term relationship between the parties. Fourthly, mediation is conducted privately, under less pressure and in somewhat less artificial circumstances than a court hearing. Fifthly, it is far more likely that both parties will emerge as “winners” or at least neither party will emerge as a disgruntled “loser”.

However, it has to be recognised that, unlike litigation, where the dispute will always be resolved one way or the other, a mediation may not deliver a settlement on the day. Having said that, the most recent figures available show that 89% of cases mediated settle either on the day (74%) or shortly afterwards (15%) [5]. It is rare for those mediations to be a waste of time and money: issues may be narrowed and some resolved or abandoned, priorities better understood, options and opportunities identified and even if the result is a heightened determination to litigate then arguably that is a result. For local authorities in particular, this can be of real value when justifying a course of action to cabinet members.

Much depends on the ADR process used. Below are some of the benefits that have been identified by those who have engaged in mediation in particular:

(a) It has a different tone and atmosphere to litigation which tends to foster agreement.

(b) It is flexible and can be adapted to the particular characteristics of the parties and the dispute.

(c) The process is usually by consent, and if not the attendance then certainly the participation and any agreement reached thereby giving the parties greater control over their decisions.

(d) The parties can choose the third party to mediate or arbitrate the dispute. This gives them greater confidence in the process.

(e) The parties can choose the input from the third party i.e. whether it is helping the parties to formulate their own propositions or when asked to use his/her expertise to offer independent views to the parties.

(f) The parties can choose how the mediation is conducted; and it is one of the core skills of the mediator to adjust the process to facilitate the conduct of the negotiations in consultation with the parties and their legal advisers.

(g) The negotiations and the outcome can be confidential.

(h) It can be cheaper and quicker than litigation. Most mediations only last one day.

(i) It can be used to settle all or part of a dispute.

(j) It can be used to narrow issues.

(k) The outcome can be by way of formal agreement or otherwise as circumstances dictate.

(l) A far wider range of outcomes (e.g. an apology or an explanation) is available, rather than the narrow range of remedies available to the Court.

(m) It can improve and restore relationships between the parties which is particularly important in sectors where there are fewer players or the costs of termination greatly outweigh the quantum in a particular dispute.

The generally accepted principle in non-public law claims is that ADR is a quicker and cheaper way of settling disputes. This is not however necessarily the same in the context of public law. Given that the vast majority of judicial review hearings last only a day the Public Law Project in their 2009 report [6] suggested that mediation could be more expensive for parties than litigation. We are somewhat surprised by this conclusion, given the limited evidence available. What is clear is that familiarity with setting up a mediation and greater understanding of the benefits are both key to the level of engagement and that speaks to improved education generally. It seems to us that if a dispute is mediated either pre-proceedings, or early on in proceedings it is likely to provide a considerable costs saving.

Mediation in public law

There are three points that we highlight here which are often cited by practitioners as a reason why mediation is not suitable in the public law context. First, some practitioners consider there to be a tension between the constitutional and supervisory role of judicial review on the one hand and the private and confidential nature of mediation on the other. The principle that judicial review is an important constitutional check on the power of government does not, for some, sit easily with the idea that disputes could be settled in a confidential mediation.

Indeed, the special status and function of public law was recognised in the 2001 government pledge to use ADR to resolve disputes involving government departments wherever possible [7]. The pledge specifically excluded public law and human rights disputes. The exclusion reflected the then Lord Chancellor Lord Irvine’s view that, while ADR has an expanding role within the civil justice system,

‘there are serious and searching questions’ to be answered about its use and that it was ‘naïve’ to assert that all disputes are suitable for ADR and mediation.

Examples cited by Lord Irvine included cases concerning the establishment of legal precedent, administrative law problems, and cases which ‘set the rights of the individual against those of the state’. These, he said, must be approached ‘with great care’.

It seems to us, however, that this is more of a theoretical problem than a real one. Save in a very few cases, what a Claimant is trying to achieve in a public law challenge is the best outcome for that particular Claimant. There is therefore no principled reason why that outcome should be achieved by way of Judgment rather than a mediated settlement. Seemingly, the vast majority of judicial review claims settle [8] suggests that having a public airing of the issues is not, for most Claimants, a priority.

The second consideration goes to the nature of public law disputes. Whereas in private law disputes, parties are free to reach settlements that are based on their interests rather than legal entitlements, it can be rather different in a judicial review claim. There can be issues to consider such as vires, resources and issues of wider public interest that might limit the scope for settlement. It seems to us however that this concern can, in the vast majority of cases, be ameliorated by having a mediator who is familiar with the powers and decision-making processes of the public body in question or with the area of law in dispute and who is able to reality check the proposed settlement with the public body to ensure that it is one that the public body can properly agree. We discuss below the particular issues that arise in this respect in mediating disputes in relation to those who lack capacity.

The third consideration is a practical one. The majority of judicial review disputes settle without requiring any sort of intervention from the Court. The nature of the remedies in judicial review is such that public bodies can avoid the challenge simply by agreeing to reconsider and come to a fresh decision. This is often the quickest and cheapest way out of a dispute for a public body. In this context many practitioners consider that mediation has perhaps a limited role to play in public law disputes. We are not so sure that this is the case. In the first instance it seems to us that mediating a dispute early on is likely to lead to substantial cost savings as well as provide greater certainty over likely outcomes. Further, the fact that the mediation may well lead to the public body reconsidering the decision at hand is precisely what may make it an attractive option for Claimants as, in effect, it is all that they can hope to achieve through the judicial review process.

We do acknowledge that as a result of regulation 5A of the Civil Legal Aid (Remuneration) Regulations 2013 (which effectively prevents a claimant from obtaining legal aid in judicial review proceedings once issued unless permission is granted) publicly funded Claimants are unlikely to be willing to mediate a dispute between issue and the permission hearing.

Is the dispute suitable for ADR?

Not all disputes are suitable for this kind of dispute resolution. Factors to consider include the following:

  • the nature of the dispute or claim
  • whether the claim can be settled by negotiation
  • what outcome the client wants
  • what added value the involvement of a mediator might bring
  • whether the client wants to be involved in the decision-making process
  • time considerations – is it urgent?
  • cost considerations – what will it cost to mediate, and how does this compare to the anticipated cost of litigation?

Factors that might make a dispute unsuitable for anything other than litigation include:

  • The nature of the dispute. For example, those requiring the declaratory function of the Court (for example the inherent jurisdiction of the Court) where the court is the means by which the State ensures compliance with the ECHR for example in a DOLS challenge, where issues of child protection or adult protection arise, or where injunctions or other coercive or prohibitive orders are required, perhaps with penal notices and powers of arrest attached.
  • Cases which are less suited to mediation (although not necessarily wholly unsuited) would include claims based on alleged ultra vires issues, where points of law need to be decided and cases raising issue of public importance.
  • Where ADR may not ultimately resolve the dispute, for example in the planning context where the impact of the decision is sufficiently wide that it may not be possible to engage with all those with an interest in the dispute, or alternatively where the agreement arising from the ADR requires a further consent which itself may give rise to objections from those who were not involved in the ADR process.
  • The personalities of those involved in the dispute. There are some litigants who struggle with any decision making or are incapable of reaching an agreement with a statutory body with whom they perceive themselves to have been at war or who renege on agreements; and so a court order along with the ability to enforce that order is required. Attempting ADR may for such cases simply add another layer of cost and more delay into the process. Having said that, there have been some remarkable success in mediating with people so disposed.

We suggest that ADR, and in particular mediation should be actively considered where:

  • The dispute is complex, involves multiple parties and were it to be litigated would take up significant court time. Active consideration is being given to what, if any, parts of that dispute can be mediated so that the contested issues are reduced.
  • It is important to conserve the relationship between the parties, so for example where they need to work together in the future. This is often a real consideration in Court of Protection cases.
  • Negotiations have broken down but where the introduction of an independent neutral third party can help re-start dialogue especially where the parties are in general agreement about the course of action required to resolve a dispute but need help to agree the detail.
  • A claim for damages is included in judicial review proceedings. The flexibility of the mediation process enables the parties to take a more needs based view of the dispute.
  • There is an imbalance between the parties, making negotiation very difficult. We have in mind where one party is not legally represented. The mediator can ensure a more level playing field and that all voices are heard.

The current legal landscape

ADR and the CPR

There are considerable incentives in the Civil Procedure Rules to consider and engage in ADR. By way of topical example, the Judicial Review Pre-action Protocol provides:

Alternative Dispute Resolution

9. The courts take the view that litigation should be a last resort. The parties should consider whether some form of alternative dispute resolution (‘ADR’) or complaints procedure would be more suitable than litigation, and if so, endeavour to agree which to adopt. Both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. Parties are warned that if the protocol is not followed (including this paragraph) then the court must have regard to such conduct when determining costs. However, parties should also note that a claim for judicial review should comply with the time limits set out in the Introduction above. Exploring ADR may not excuse failure to comply with the time limits. If it is appropriate to issue a claim to ensure compliance with a time limit, but the parties agree there should be a stay of proceedings to explore settlement or narrowing the issues in dispute, a joint application for appropriate directions can be made to the court.

10. It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation which may be appropriate, depending on the circumstances—

      • Discussion and negotiation.
      • Using relevant public authority complaints or review procedures.
      • Ombudsmen – the Parliamentary and Health Service and the Local Government Ombudsmen have discretion to deal with complaints relating to maladministration. The British and Irish Ombudsman Association provide information about Ombudsman schemes and other complaint handling bodies and this is available from their website at www.bioa.org.uk. Parties may wish to note that the Ombudsmen are not able to look into a complaint once court action has been commenced.
      • Mediation – a form of facilitated negotiation assisted by an independent neutral party.

11. The Civil Justice Council and Judicial College have endorsed The Jackson ADR Handbook by Susan Blake, Julie Browne and Stuart Sime (2013, Oxford University Press). ………..

12. If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate in ADR or refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.

CPR 1.4(1) obliges the court to further the overriding objective of enabling it to deal with cases justly by actively managing cases. This includes, according to rule 1.4(2)(e):

encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure.

Further, the Administrative Court Judicial Review Guide [9] draws attention to the continuing duty upon the parties, no doubt, in part, because of the issue of litigation conduct in relation to the recovery of costs under CPR 44.4. The Guide advises:

12.2.1  The parties must make efforts to settle the claim without requiring the intervention of the Court. This is a continuing duty and whilst it is preferable to settle the claim before it is started, the parties must continue to evaluate the strength of their case throughout proceedings, especially after any indication as to the strength of the case from the Court (such as after the refusal or grant of permission to apply for judicial review). The parties should consider using alternative dispute resolution (for example, mediation) to explore settlement of the case, or at least to narrow the issues in the case.

The Case Law

It is open to the Court to take the failure to engage in ADR into account when considering whether or not to grant permission in a judicial review claim. We are not aware of a reported case yet that has applied this principle to the failure on the part of a party to engage in mediation or other types of ADR outside the complaints procedure or the Ombudsman. In any event, it seems to us that there is far more scope for defendants to offer mediation early on in a dispute and then rely on a claimant’s refusal to participate in such as a reason for the Court to refuse the grant of permission, or at least to stay the proceedings until such time as the mediation has been attempted. The recent publication of the Administrative Court Judicial Review Guide, [10] with clear advice mentioned above, not only supports that approach but may yet lead to a change in practice as it becomes more widely known.

Crucially, the refusal of an offer of mediation can have costs consequences. The general rule in CPR 44.2(2)(a) is that the unsuccessful party is ordered to pay the costs of the successful party. This needs to be read together with CPR 44.4(3)(a)(ii), which requires the court, in deciding the amount of costs to be awarded, to have regard to the conduct of the parties, including in particular: “the efforts made, if any, before and during the proceedings in order to try to resolve the dispute.”

While no party can be forced to engage in ADR, they may be penalised in costs if their refusal to engage is unreasonable, as the Courts have pointed out in such cases [11] as Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002, Rolf v De Guerin [2011] EWCA Civ 78 and PGF II SA v OMFS Company [2013] EWCA Civ 1288. In Briggs v First Choice Holidays [2017] EWHC 2012 (QB), though, the Court had to consider whether it was reasonable for claimants who had personal injury claims, to enter into conditional fee agreements where they were entitled to use the ABTA mediation scheme. The Court held that the position had not yet been reached where the mere presence of ADR meant that it was not reasonable to litigate. All considerations had to be taken into account.

Planning

The ability to use facilitation and mediation, in the planning process has been recognised for at least the last ten years. For example:

(i) The Killian/Pretty Review 2008 into the English Planning System recommended that “greater use of alternative dispute resolution approaches should be encouraged at all stages of the planning application process where this can deliver the right decisions in a less adversarial and cost effective way.”  

(ii) The joint report from the Planning Inspectorate and the National Planning Forum in 2010 recommended that mediation should become a part of the planning process.

(iii) The Short Guide to ‘Mediation in Planning’, endorsed by the then minister for Minister for Planning, Department of Communities and Local Government in 2011 (republished in 2014) explained its specific benefits.

(iv) The Department of Communities and Local Government “Section 106 brokers” initiative in 2012/2013 to help release “stalled sites” showed how such independent involvement could work effectively.

(v) The currently unimplemented section 106ZA adjudication process introduced by the Housing and Planning Act 2016 further displays a continuing government appetite for dispute resolution mechanisms.

Areas appropriate for mediation and facilitation:

  • Major projects – By Government/Promoter to rationalise the areas of formal objection, particularly where compulsory purchase powers may have to be used
  • Development plans and briefs - By Planning Authority/Promoter (pre-publication to identify issues and options, constraints and opportunities; post-publication to address issues)
  • Planning applications – By Applicant (pre-application consultation to improve scheme (e.g. siting and design) and to help reduce/minimize objections
  • Section 106s – By both parties where negotiations have stalled or become overly extended.
  • Enforcement cases – By both parties where voluntary action is preferable and/or there are timing issues.

However, as the very process remains a confidential exercise the fruits are largely hidden from wider view. In consequence, experience and understanding is defined by anecdotal responses in the various research projects that have been undertaken and, from the limited number of practitioners in this field. What is lacking is clear governmental “sign-posting” of the benefits of these types of use and the detriments, in terms of costs consequences, by way of project overruns and unreasonable behaviour findings at appeal. This could easily be remedied by appropriate advice, for example, in national Planning Practice Guidance.

Compulsory Purchase

The use of an independent facilitator makes sense where negotiations are required in respect of land assembly, in the timing and phasing of the release of land parcels and regarding the timing and payment of compensation. Disputes inevitably arise with the Upper Tribunal (Lands Chamber) acting as an “option of last resort”. Cases generally take in excess of two years to come to a hearing or final resolution [12]. Accordingly, there should be every incentive, both carrot and stick, to engage in early dispute management. However, though growing in recognition and certainly among CPO practitioners [13] “take-up” remains patchy. On a positive note, the leading practitioner body the Compulsory Purchase Association[14], now endorses the active consideration of the use of ADR [15] in its forthcoming [16] Land Compensation Claims Protocol.

The Tribunal itself can act as a facilitator of ADR too. It has similar provisions as those under the CPR. Thus, Rule 3 of its 2010 Rules encourages the Tribunal to seek, where appropriate:

(a) to bring to the attention of the parties the availability of any appropriate alternative procedure for the resolution of the dispute; and       

(b) if the parties wish and provided that it is compatible with the overriding objective, to facilitate   the use of the procedure.”

Its Practice Direction, supplementing the 2010 Rules, states:

“1) Parties may apply at any time for a short stay in the proceedings to attempt to resolve their differences, in whole or in part, outside the Tribunal process …” (para. 2.1)

The Tribunal will automatically allow a six-week period for mediation, though the parties may apply for a longer stay. Indeed, the potential “sting in the tail” comes within paragraph 12.2 of the Practice Direction, which provides that:

“… The conduct of a party will include conduct during and before the proceedings; whether a party has acted unreasonably in pursuing or contesting an issue … “

Accordingly, the refusal to enter into “mediated” discussions and/or an early neutral evaluation can have an effect on the eventual outcome. What is currently lacking, again, is sufficiently clear “sign-posting” which, in turns, leads to an inadequate understanding by those affected of these underlying requirements and their associated benefits; though it is hoped that the current initiatives by the CPA and the RICS will all help deliver the necessary change in approach, particularly at the “early stages” of a reference that the Tribunal has been seeking for some while.

Court of Protection

It seems to us that there is considerable scope for mediating some Court of Protection (‘COP’) medical treatment and welfare cases. It is in our view, underused in this area, both as a way of resolving and avoiding disputes.

There are already changes which are designed to increase the take-up of mediation in the COP:

(i) The COP rules 2017 rule 1.3(2)(h) provides that the Court must encourage ‘the parties to use an alternative dispute resolution procedure if the court considers that appropriate;

(ii) The pilot practice direction for case management in welfare disputes, now requires applicants at the pre-issue stage, to set out their proposals for resolving the dispute without the need to issue proceedings, and engage with those notified of the dispute in order to resolve the dispute as far as possible.

(iii) The pilot practice direction for case management in property and affairs disputes will list the matter for a Dispute Resolution Hearing once it becomes contested. The purpose of this hearing ‘is to enable the court to determine whether the case can be resolved and avoid unnecessary litigation, and so— (a) in order for the Dispute Resolution Hearing to be effective, parties must approach it openly and without reserve; and (b) the content of the hearing is not to be disclosed and evidence of anything said or of any admission made in the course of the hearing will not be admissible in evidence, except at the trial of a person for an offence committed at the hearing’. Importantly, the Court will give its view on the likely outcome of the proceedings. If this does not lead to settlement the final hearing will be heard before a different Judge.

(iv) The Public Guardian has launched a mediation pilot (free to those who use it) in respect of disputes about LPAs and deputies pre-issue of proceedings.

(v) There is a working group designing a Court of Protection mediation scheme which can be used in cases post issue. Following a meeting with the judiciary steps are being taken to get this ready for launch later this year.

The advantages of mediating COP disputes are as follows:

(1) It is more likely to conserve the relationship between the parties, who may have to work together for many years to come.

(2) These are cases where there is often at least one unrepresented party, making any negotiations difficult as a result of the imbalance between the parties.

(3) An independent mediator may be able to bring family members of ‘P’ who have felt marginalised by the decision making process, back into that process to break the deadlock.

(4) As the Code of Practice at paragraph 15.7 notes: ‘People who come to an agreement through mediation are more likely to keep to it, because they have taken part in decision-making’.

(5)The fact that COP proceedings can be extremely costly and can last several years can mean that mediation is always worth serious consideration.

(6) It may also provide a saving to public bodies by diverting the time of the professionals involved from front line services to the mediation rather than litigation and greatly reducing the need to produce lengthy statements and giving evidence.

The personalities of the litigants will be of particular relevance in determining whether mediation is worth considering. So too will the nature of the case. There are a number of COP cases which would not be suitable for mediation. These include:

(i) Deprivation of Liberty (DOLS) “Re X type” cases which would otherwise be using the stream lined process. These are by definition agreed, and require a Court order.

(ii) Where a restrictive regime is being imposed on a ‘P’ to which ‘P’ objects. (including a deprivation of liberty).

(iii) Cases where there may be an overlap with the Inherent Jurisdiction (including wardship cases), and where there are issues around forced Marriage. These cases require High Court orders.

(iv) Disputes about whether ‘P’ has the capacity to make the decision in question.

(v) Disputes about what the law is.

(vi) Disputes in which serious allegations of abuse (save for allegations of financial abuse) have been made against one party or where there is a dispute about whether abuse (save for allegations of financial abuse) has taken place.

Court of Protection mediation gives rise to several thorny issues:

(1) The parties are attempting to settle a dispute as to what is in a third parties best interests. It is not like traditional mediation, where the parties can agree whatever they like to settle their dispute, irrespective of the rights or wrongs of the settlement.

(2) In order for the agreement to be lawful therefore certain steps have to be taken, namely, (i) the parties must only come to an agreement on matters where P lacks capacity; (ii) the parties must ensure that P can participate in the mediation; and (iii) the parties must ensure that P’s wishes and feelings have been taken into account.

(3) Unless these steps are taken, the decision will not comply with the Mental Capacity Act and will not be lawful. Is there a duty on the mediator to police this or is this the duty of P’s legal representative (if there is one)? If it is for the mediator, does this places the mediator in a different role from that traditionally promoted?

(4) If the dispute is before the Court, how to deal with any agreement? Once the proceedings are issued, the Court is the decision maker on behalf of P. Should evidence be provided to the Court to illustrate why the agreement is in P’s best interests (in which case, how to deal with information that was provided during a confidential mediation?), or can an application for permission to withdraw the proceedings be made?

Conclusion

Despite these difficulties, it is our experience that the use of both mediation and third party facilitation can work well in even the most protracted and ill-tempered disputes. It is also follows a trend that is being encouraged by some members of the judiciary [17] of “doing disputes better”. Maybe, the message needs to come home to those involved with local government disputes.

John Pugh-Smith is a public law specialist mainly in the fields of planning and compensation law and related work areas. He is a highly experienced mediator, a member of the Design Council’s Highways England Design Review Panel and one of the two special advisers to the All Party Parliamentary Group on Alternative Dispute Resolution.

Katherine (Katie) Scott is a health law specialist with a particular focus on mental health and disputes in the Court of Protection where she has acted as a mediator. She is a member of the Court of Protection working group on mediation . She also acts as a community mediator. Both are active in promoting the use of ADR in their specialist fields.


[1] http://moothill.partners/

[2] As explored, recently, by the All Party Parliamentary Group on Alternative Dispute Resolution, in connection with the proposed MHCLG Housing Ombudsman scheme at a joint enquiry session on 17th July 2018: http://www.ciarb.org/policy/uk-appg-on-adr

[3] This is the process whereby the Judge, in an issued case, is asked by the parties to give an early neutral evaluation of the case, or an issue in the case, in other words, state how he/she would decide the issue at trial. This is not binding on the parties, and if this does not have the effect of achieving settlement then the litigation continues, albeit that Judge cannot be the trial judge. It has also been used in CPO compensation matters through an independent senior barrister or chartered surveyor

[4] http://www.nuffieldfoundation.org/sites/default/files/files/MJRhandbookFINAL.pdf

[5] https://www.cedr.com/docslib/The_Eighth_Mediation_Audit_2018.pdf pg 5

[6] https://publiclawproject.org.uk/wp-content/uploads/data/resources/31/MediationandJudicialReview.pdf

[7] The ADR Pledge was replaced by the broader Dispute Resolution Commitment (2011).

[8] Information provided by Sophie Byron, University of Birmingham, following a Pilot Study as presented by her to The Hart 10th Annual Hart Publishing Judicial Review Conference (Dec. 2016): 60% of all disputes are settled before issuing proceedings (after LBC); 34% of all claims are settled/withdrawn after claim issued; of the remaining cases 40% were granted permission and of these 63.6% settled before a full hearing. Only 46 cases out of a sample of 1000 disputes with LBC reached a full hearing

[9] https://www.gov.uk/government/publications/administrative-court-judicial-review-guide

[10] July 2016, last updated 18 December 2017

[11] For a more comprehensive list of recent examples please refer to the Moot Hill Mediation Case Law Database: http://moothill.partners/subject/failure-to-mediate/

[12] For a recent review of the current challenges and opportunities, see:

http://compulsorypurchaseassociation.org/files/The-CPA-Law-Reform-Lecture-Pre-Reading-Material-2017.pdf

[13] By way of example, at the CPA Annual Conference on 11 July 2018, the results were presented of an on-line survey undertaken by Hannah Griffin and Jack Clitheroe, Fraud Investigation & Dispute Services, Ernst & Young LLP, of the 300 conference delegates, for their paper “Market Issues”. They revealed that 1 in 5 of the 96 respondees had used ADR, and, that where used, 75% claims had settled. During this conference session it was also noted that the number of delegates (approx. 50 per cent) had specialised in CPO work within the last 10 years of which 60 per cent had done so within the last 5 years.

A paper was also presented on Early CPO Alternative Dispute Resolution by Emmanuel Pitman & Clarke Vallance, Directors in Savills’ Compulsory Purchase Team, on the RICS Initiative to introduce a new form of Independent ADR tailored specifically to meet the needs of CPO compensation disputes through an Independent Third Party Evaluation process paid by the acquiring authority though the parties would meet their own costs. The scheme would be non-binding unless otherwise agreed by both parties. It is aimed at smaller, lower value, less complex claims from e.g. homeowners and SMEs,

[14] http://www.compulsorypurchaseassociation.org/

[15] The Protocol stresses that it does not attempt to advise parties to a compensation dispute how claims might be settled or issues resolved without litigation in the Tribunal. However, it does require that in all cases parties should give due consideration to any opportunity to avoid a Reference or narrow the issues between them by using facilitation techniques, often known as ‘alternative dispute resolution’ (“ADR”).

[16] At the time of writing the draft Protocol has been published to the CPA membership for final consultation with a closing date of 31st July 2018. Subject to any amendments which may be considered appropriate to reflect any responses to consultation, the CPA has decided that he membership should vote on the question whether the draft should be adopted.

[17] See, for example, the comments made by Francis J at first instance in the ‘Charlie Gard’ case: [2017] EWHC 1909 (Fam).

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