As a member of the Civil Procedure Rule Committee, I wanted to respond to your article on mediation (News,15 June).
The article referred to rule changes made in April, which require defendant insurers to show they have made attempts to mediate.
The emphasis in the amendments is in fact to ensure that all parties attempt to resolve their disputes by use of alternative dispute resolution (ADR).
That raises two important points: first, the pressure is on all parties, not just the defendant or his insurer.
Any party in a multi-track case who decides not to engage in ADR will have to lodge a statement with the court, before trial, to explain why he does not intend to do so.
Even the claimant who is intent on having his day in court will have to pause before taking that step.
The second important point is that there is no provision restricting this to mediation. It is a common misconception that mediation is the only form of ADR available.
It is certainly more widely used, but as your article points out, it can be an expensive extra layer to the process.
There are a number of other options: the parties who agree that their case turns on the evidence of a particular type of expert could for instance submit to a form of arbitration by instructing a single joint expert.
In a low value case it might be better for both sides to submit their evidence at an early stage for a simple neutral evaluation by an independent barrister. As a variation, such evaluation could be binding on the defendant only, giving the claimant the option to litigate but at risk as to costs.
The amendments to the Practice Direction - Protocols make it clear that, in all cases, litigation is a last resort and that other methods of resolving the dispute must be considered.
Those include simple discussion and negotiation, which should be an automatic part of the process.
The simple message from the rule committee is that trials and litigation are expensive and all parties should consider other ways of resolving their dispute.
All that is needed is a willingness to embrace new ideas, rather than sticking to old and costly habits.
Andrew Parker
Head of strategic litigation
Beachcroft
