Introduction
Good morning. Thank you for inviting me to your conference today to talk about the key issues for Government in the context of ADR, particularly mediation.
I am from the Department for Constitutional Affairs, which is new as of June this year. It is a new department, with a new emphasis to serve the public, and on the side of the public, whereas in the past, the Lord Chancellors Department concentrated on providers. This new focus will clearly assist those committed to ADR (Alternative Dispute Resolution) and mediation.
Access to justice
Lord Woolf's Access to Justice report identified the need for fair, speedy and proportionate resolutions. Those principles lay at the heart of the Civil Procedure Rules which came into force in April 1999, around the time that I decided to leave the legal profession - they were developed on the understanding that litigation should be the dispute resolution method of last resort. The CPR included the first references to ADR in rules of court and introduced pre-action protocols, with their emphasis on settlement, even before court proceedings are issued. They added up to a wholesale change in the way we look at disputes.
How many of us at that time would have envisaged a decision like Dunnett versus Railtrack recently handed down by the Court of Appeal? [case where successful party was denied costs on the basis that they had refused an offer of mediation] The Government's understanding of justice encompasses more than formal legal processes. Justice in one case might mean a decision from a High Court Judge having heard high powered legal teams on both sides. In another case, justice might mean an apology in response to a particular problem. People can be driven to litigation when all they really want is an apology.
ADR has a major role to play. It is clear that there are circumstances in which ADR can provide resolutions a court cannot - because disputes, even justiciable ones, can involve non-legal issues - such as the need for an explanation or a change in procedures to prevent a recurrence of the source of the dispute. And mediated outcomes include recompense in kind as well as money. The Alder Hey mediation attests to the inclusivity of justice. The terms of settlement included the provision of a Memorial plaque at the hospital, letters of apology, a press conference and contribution to a charity of the claimants' choice. These non financial remedies were essential to the successful conclusion of the case and the need of the participants to achieve what they felt to be a just resolution.
PSA
My responsibilities in the Department for Constitutional Affairs cover a range of subjects, and primary amongst these is my responsibility for legal aid, with a budget of £1.9 billion a year. Accountability to the Treasury and the public is not just about how much we spend but how effectively we spend it, and we do that through our Public Service Agreement.
The third target in our Public Service Agreement, our commitment to the public on what we will deliver, agreed with the Treasury, is "to reduce the proportion of disputes which are resolved by resort to the courts". We in the Department for Constitutional Affairs have many drivers to live up to that PSA target and the financial imperative behind it.
This is a commitment to ensure that disputes are resolved quickly, effectively and in a manner and at a cost proportionate to the issues at stake, without compromising access to justice, hopefully in fact enhancing it. The court based mediation schemes already in place will make a significant contribution to deliver on that commitment.
But we need to up the contribution of Courts in this area. To ensure that we spend the public's money on schemes that do improve access to justice, we are developing projects which explore the alternatives to the court process which are quicker, cheaper and less adversarial.
By April 2004 we aim to have proactive involvement with mediation in 40 courts around the country - testing different models of interaction between mediation and the courts.
The first model we are testing is to raise awareness of mediation by targeting information to court users at different stages of the court process, because people simply aren't aware that mediation is an alternative available to them.
The second model, based on the US experience where in several states mediation forms an integral part of the court process, is to provide tailored advice on the potential benefits of mediation to parties and their representatives in their particular case. You will be hearing more about the American experience later this morning. I practiced in the States for a short time, and ADR is a live alternative there from which we have much to learn.
The third and most radical scheme, which will actively promote mediation, reinforcing the message of Dunnett versus Railtrack, is the opt-out scheme in which randomly selected cases will automatically be referred to mediation. Parties will have the opportunity to opt-out, but will have to provide their reasons to a judge as to why it is not appropriate.
All of these schemes will be evaluated to enable us to target public money effectively. The results will give us the information we need to make decisions about whether and how to roll out one or more of the schemes - or aspects of them - on a wide basis. 40 courts around the country are testing out different models in different ways. I hope we can call on the commitment and dedication of the judiciary and others when we begin to put the lessons we learn from our pilot schemes into practice.
Government activity
This Government is not just promoting mediation for others, we are increasingly using it ourselves. The Government pledged to use ADR to settle its own disputes wherever possible. Our recent report shows that in the last financial year ADR was used or attempted in 617 of the Government's own disputes. We estimate that, as a result, we have saved more than £17 million of taxpayers money.
In one case, the Ministry of Defence reached an agreement over the claims of Kenyan tribes people alleged to have been killed or injured by unexploded devices on training ranges in Kenya used by the British Army. This issue had been in dispute for 2 years, but was resolved with a 2 day mediation, conducted by CEDR. The Department for the Environment, Food and Rural Affairs used mediation, also more recently, successfully to settle a number of contract claims in relation to Foot-and-Mouth Disease.
Conclusion
The success of mediation, and other forms of ADR, in resolving disputes is not in question. The issue is about the proper relationship between ADR and the courts. We have had a journey to travel. The Government is now seriously committed, putting money into court-based schemes around the country, using ADR for it own disputes. The engine is on and we are moving into a new dawn, to solve disputes in a more harmonious way.
Thank you.