The aim of this report is to evaluate the progress Government Departments and Agencies have made in implementing the ADR pledge, which was announced by the Lord Chancellor in March 2001.
Under the terms of the ADR Pledge, all Government Departments and Agencies have made the following commitments:
Alternative Dispute Resolution will be considered and used in all suitable cases wherever the other party accepts it.
In future, Departments will provide appropriate clauses in their standard procurement contracts on the use of ADR techniques to settle their disputes. The precise method of settlement would be tailored to the details of individual cases.
Central Government will produce procurement guidance on the different options available for ADR in Government disputes and how they might be best deployed in different circumstances. This will spread best practice and ensure consistency across Government.
Departments will improve flexibility in reaching agreement on financial compensation, including using an independent assessment of a possible settlement figure.
Government Departments will put in place performance measures to monitor the effectiveness of this undertaking.
The information submitted to the Lord Chancellor's Department shows that the number of Government disputes in the financial year 2001 - 2002 where a method of dispute resolution has been used or attempted is 49.
Whilst this appears a somewhat disappointing figure, it must be remembered that it would be too ambitious to expect the first year to provide anything more than a baseline that can be used, over time, to give a feel for the volume of disputes that are settled by ADR. Over time, however, these annual returns will demonstrate whether the level of ADR use has increased, remained stable, or decreased.
Although outside the period of the report, it is also worth mentioning that the Ministry of Defence (MoD) has recently reached an agreement over the claims of Kenyan tribespeople bereaved or injured by British Army explosives left on their land. This issue has been in dispute for 2 years, but now, following a 2 day mediation in London, the MoD has agreed to pay, on limited liability, a £4.5m settlement.
That said the information received this year already demonstrates that the ADR Pledge is taken very seriously. Many Departments have embarked on progressive steps to implement training programmes to ensure that ADR is a fundamental part of their dispute handling process.
The Treasury Solicitor's Department has set a target that by 2002-2003 all case workers within its litigation Division will have had mediation awareness training. The Head of Litigation has personally attended a training course for mediators and some case workers will also receive mediation skills training.
One of the senior lawyers from the Department of Transport Local Government and the Regions (before the reorganisation of responsibilities in May 2002, and now from the Office of the Deputy Prime Minister) has undertaken the necessary training to become a mediator herself. Her aim is to use this training, and experience of acting as a mediator on a pro-bono basis, to inform the development of policy and the handling of Departmental business. Training is also being arranged for the Department's legal group as a whole.
During the year the Department for Work and Pensions and Department of Health lawyers, including all their litigation lawyers, have also received awareness training.
The Home Office has set up a pilot mediation scheme within the Prison Service's Eastern area. The scheme will deal with certain personal injury disputes and will operate with the assistance and support of the Treasury Solicitor's Department.
Departments are also encouraged to provide anecdotal information about cost savings as a result of using ADR.
The Department of Transport, Local Government and the Regions (before the reorganisation of responsibilities in May 2002) reported success in at least one substantial case, where the claim was settled at much lower cost than would otherwise have been incurred, has proved ADR has a part to play in public law.
The Treasury Solicitor's Department has estimated an overall saving of legal costs of £2.5m, through the use of ADR.
There have been a number of initiatives introduced as a direct result of the ADR pledge.
Procurement Guidance
The Office of Government Commerce, with the assistance of the Lord Chancellor's Department, the Department of Trade of Industry and the Centre for Effective Dispute Resolution, published new guidance on dispute resolution in April. The new guidance places fresh emphasis on the importance of forward planning and seeks to put into effect sound dispute avoidance and dispute management practices. It contains the full text of the pledge, identifies the distinguishing features of both non-binding and binding ADR techniques and provides model clauses for incorporating different methods of dispute resolution at the time a contract is agreed.
Several hundred hard copies of the guidance have been distributed and 405 hits were recorded on the text on the OGC website in June at www.ogc.gov.uk/sdtoolkit/library/generic_guidance/dispute.pdf
Conference for Government Lawyers
LCD hosted a conference for Government Lawyers on 21 November with the aim of promoting the use of ADR. The Lord Chancellor and the Attorney General addressed the conference, which also included presentations from ADR providers, a leading barrister and several Government lawyers on their experiences of using ADR methods.
The conference generated a great deal of enthusiasm and was successful in achieving its aim of encouraging Government Departments to understand the benefits of ADR. A small number of delegates have already arranged to undergo training as mediators and a number of the speakers have been invited to assist with various Departmental training programmes.
Government Legal Service ADR Sub-Group
Following the conference in November an ADR Sub-Group of the Government Legal Service Liaison Group has been set up. The aim of this group is to identify the issues that need to be tackled and to identify suitable cases where ADR can be used.
National Health Service Litigation Authority (NHSLA)
The encouragement of greater use of mediation, and other forms of alternative dispute resolution, is one of the options considered by the NHSLA, who are responsible for handling clinical negligence claims made against the NHS. The NHSLA is working with the Legal Services Commission to develop joint strategy for promoting greater use of mediation as an alternative to litigation in clinical negligence disputes.
Since May 2000 the NHSLA has been requiring solicitors representing NHS bodies in such claims to offer mediation in appropriate cases, and to provide clear reasons to the authority if a case is considered inappropriate.
In June 2000, the authority began an initiative to encourage the use of mediation to resolve all suitable cases. 77 offers for mediation had been accepted and at the end of April 2002, 32 had been mediated, 31 successfully.