REUTERS | Mukesh Gupta

Shaping the future of dispute resolution: why this affects you and what you can learn from listening to what users want

I attended the final event in the Global Pound Conference (GPC) series in London last week, Shaping the future of dispute resolution and improving access to justice. This was a series of conferences which took place in 29 different global locations at which delegates were asked the same series of questions to obtain data to contribute to the debate on how current dispute resolution processes can evolve to better serve the needs of their users. The questions were aimed at finding out what parties want from commercial dispute resolution processes and how current systems can be improved, and identifying obstacles to change and how these can be overcome.

Why should you care?

You may well be thinking that this is all well and good but it doesn’t really affect me, I am too busy doing my job; if the process I have to follow changes, then I will deal with that as and when that happens. That view is wholly understandable. However, listening to the debate at the GPC, it struck me that this is not just blue sky thinking, but is relevant to all practitioners and could change the way they do their job today. Why?

First of all, there is no doubt that we are experiencing a period of significant change in our justice system and this is only going to gather momentum. I think it is vital for practitioners to be on top of this change in order to provide the best service to clients and also to take this very real opportunity to influence ongoing changes. Briggs LJ, who opened the conference, referred to the real need to question our existing system. This is something we can all do, whatever the nature of the disputes we are involved in, because change is happening at all levels and we can all influence that change.

Secondly, and perhaps even more importantly, the GPC split delegates into different interest groups for the purpose of answering the questions; we can see what users themselves want from the dispute resolution process from the answers given. The users’ answers are enlightening and I think there are lessons to be learned from these which could change the way practitioners work today, even before any further improvements to our current systems have been introduced.

Change is here whether we like it or not

Back in February 2015, when the Civil Justice Council (CJC) Online Dispute Resolution Advisory Group recommended that HM Courts & Tribunals service (HMCTS) establish a new online court for lower value disputes, it was greeted with scepticism. People thought it was just a pipe dream.

Two years later, the concept of an online court has been developed and endorsed by Briggs LJ in his review of the structure of the civil courts and now forms an integral part of HMCTS’ court reform programme. It is actually happening.

In his opening address to the GPC, Briggs LJ referred to the progress which has already been made with what he confirmed is now likely to be known as the Online Solutions Court. Briggs LJ’s model envisaged that this would apply to money claims with a value up to £25,000. However, he said that HMCTS’ plan was for the scope to be wider than this, if it proves to be successful. Its aim appears to be to provide a more accessible, cheaper and quicker system for resolving the majority of lower value disputes.

There is still plenty of opportunity to influence how the Online Solutions Court will operate. For example, HMCTS Civil Claims Money Project recently announced that it hopes to launch a pilot for a new online solution for legal representatives to issue and serve claims for unspecified sums of money later in the summer; it is requesting legal representatives to volunteer to test the proposed design and provide feedback. Those interested should contact claimsfeedback@hmcts.gsi.gov.uk.

At the other end of the scale, a number of pilots and schemes have been introduced in the High Court, aimed at bringing greater efficiency to the procedure for higher value claims by tailoring process to the circumstances of the claim or ensuring that specialist areas are dealt with by specialist judges. These include the shorter and flexible trials schemes (STS and FTS), the financial list and the financial markets test case scheme.

It appears that these initiatives will be reinforced by the launch of the Business and Property Courts which will operate from October this year, as well as electronic filing which has been compulsory in the Rolls Building courts since April 2017 and is due to be rolled out to the district registries in due course.

You can take advantage of the opportunities offered by these schemes now. For example, challenge your standard approach to directions. Consider how the trial process could be tailored to the needs of your particular case by limiting disclosure. Ask yourself whether a shorter or flexible trial procedure, using the STS or FTS may provide a more speedy cost effective resolution for your client.

Do you really know what your client wants?

The GPC data was split into answers given by:

  • Users of dispute resolution processes.
  • Advisors (such as lawyers or other consultants).
  • Providers of adjudicative processes (such as judges or arbitrators).
  • Providers of non-adjudicative processes (such as mediators and conciliators).
  • Influencers (such as researchers and educators).

It was the answers given by the users of dispute resolution which were of most interest from my perspective. It is all very well lawyers, judges or arbitrators expressing views on how we can improve our dispute resolution system. However, when it comes down to it, it is the client’s dispute. If practitioners want to offer a process for resolving disputes that works, it is important to listen to what clients are looking for so that parties want to use it.

This is not only important for contributing to the debate as to how we can reform the current system. In my view, really listening to what clients want and acting on that could have a significant impact on the way advisors approach a new instruction today.

In relation to some of the questions asked, there was a clear disconnect between the answers given by users and those given by advisors. For example, when asked what most influences the choice of process by parties involved in a dispute, users voted overwhelmingly in favour of efficiency, followed by predictability of outcome and, in third place, advice from lawyers or other advisors. Yet, the advisors ranked advice from lawyers or advisors first.

This suggests that lawyers are not always in step with their clients. It also reinforces the argument that there is real benefit in taking a step back and asking clients what they want to achieve, and how they want to achieve it.

No two clients are the same

I think it is also important to remember that each client is different and they might not all want the same thing. My impression was that the majority of users present at the conference were sophisticated corporates who were repeat users of dispute resolution processes and who were often likely to be involved in global disputes.

Of course, their views might not be aligned with a relatively inexperienced company or an individual involved in a dispute for the first time. It is therefore important for practitioners to tailor their approach to the needs of a particular client.

Practical lessons from the GPC data which you can action today

Users want financial and action focussed remedies. This may seem obvious. However, it is important to remember that users want a remedy and they are not necessarily tied to using a particular process to achieve that. Consider other options than litigation at the outset, including mediation, early neutral evaluation (ENE), expert determination and adjudication.

Users want an efficient process and a predictable outcome. Again, this does not automatically mean litigation. There are many other options which could be more efficient, such as ENE or expert determination. Alternatively, consider using some of the options out there, which are currently vastly underused, to make litigation more efficient, such as the STS or FTS, or tailoring directions (particularly disclosure) to limit evidence.

Predictability of outcome is difficult to achieve in any forum. Mediation could be viewed as the least predictable option because parties are not obliged to settle, but it has the advantage that the parties have the most control over the outcome compared with other processes.

Users want their lawyers to work collaboratively. Users chose this in preference to lawyers working for them as advocates. I think this is an important distinction. It is vital to ask clients at the outset and throughout the retainer about their needs and expectations, to listen to what they say and to be flexible in working with them to formulate a strategy to achieve this.

Financial or time constraints are the main obstacles to resolving disputes. Clients clearly want the cheapest and quickest process. Remember to consider non-adjudicative processes, as these will often be cheaper and quicker than litigation. However, if clients prefer to litigate, this begs the question as to why more parties are not using the STS or FTS or options other than standard disclosure to tailor the disclosure process. These options should speed up the process and reduce cost.

Users think lawyers are the ones most resistant to change. If you have dismissed a lot of what you have read so far as not relevant to you or as impractical, perhaps you should think again. There was discussion at the conference about the understandable difficulty in changing the mind-set of lawyers who have been trained in adversarial litigation process. However, if you can start to approach the process of resolving a dispute with a more open mind, working with the client to tailor your approach to the particular circumstances of the case, you may find that you have a more satisfied client and a reputation for being a more enlightened lawyer.

All the data from the London GPC event, as well as the global data is available at www.globalpoundconference.org

Practical Law Dispute Resolution Lucy Swallow

Leave a Reply

Your email address will not be published. Required fields are marked *