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Report highlights lack of mediation in judicial reviews by local authorities and gives guidance on how to increase its use
23 November 2009
Savings for the public purse?
A report* by Nabarro LLP, 39 Essex Street and ADR Group reveals that parties including local authorities are failing to use mediation in judicial reviews. The report provides new guidance in this area on how mediation can produce savings for local authorities.
The report illustrates that Judicial Review, a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body, is on the increase as more Local Authority decisions are challenged. This leads to the escalation of legal costs, yet few lawyers appreciate how, and when, mediation can be used in such cases to save or reduce legal bills, valuable management time and resolve differences with other parties.
The report makes recommendations to the parties involved in a Judicial Review dispute, the Judiciary, and the Legal Services Commission which, if implemented, will result in greater use of mediation leading to cost savings.
Almost all local authorities surveyed in the report (97 per cent) do not refer judicial reviews to mediation before court proceedings.
Even though only three per cent of the local authorities questioned chose to mediate straight away, the majority (86 per cent) sees mediation as a viable alternative to court proceedings and over half (56 per cent) say mediation is their preferred method of dispute resolution. 40 per cent of respondents regarded confidentiality as the key advantage of mediation.
Gerard Khoshnaw partner at Nabarro commented: “The findings of the report are timely given the current review of civil costs by His Honour Judge Jackson, due to be published at the end of this year. This review is anticipated to recommend that cost awards be based upon the parties' attempts to settle rather than the loser paying the winners costs. In some Judicial Review cases mediation may not be appropriate, but there is a large number of disputes where it could be used; for example, where there is the existence of a continuing relationship between the Local Authority and the other party or where confidentiality or speed are particularly important.”
After court proceedings were commenced, only one in ten cases were then referred to mediation, showing the courts are not really encouraging parties to consider mediation first, and that once litigation has commenced the risk of the parties becoming further entrenched is high.
Frances Woodhead, Head of Legal at Sheffield City Council commented
"The report provides a great insight into the potential benefits of using mediation in Judicial Review cases where issues of principle and trust are often the focus. The report clearly sets out the benefits of finding a resolution whilst rebuilding or improving a relationship for the future. I am convinced that mediation can be a useful process as part of resolving such cases and welcome the debate on this in the hope that more use will be made of mediation to achieve a good outcome in Judicial Review proceedings. The research is interesting and accurate in reflecting the key important benefits and reasons for using mediation. The report is sound and balanced and will be a useful reference".
Michael Lind, Managing Director of ADR Group, says: "Mediation is now part of the fabric of modern legal practice. The survey confirms there is still some way to go before local authorities see the full benefit of the process, but importantly they acknowledge the usefulness of mediation as an effective tool to minimising the expenditure of public funds in resolving judicial review proceedings."
Michael Meeson, Chambers Director of 39 Essex St, commented: "This report shows that there is a great opportunity for local authorities to generate cost savings through adopting a more progressive approach to the use of mediation in Judicial Review cases."
*The full report can be found here: The Effective Use of Mediation by Local Authorities in Judicial Review
If you would like any further information or have any queries please contact:
Charlotte Collins-White
Lansons Communications
T +44 (0)20 7566 9706
charlottecw@lansons.com
or
Jemma Parry
Lansons Communications
T +44 (0)20 7294 3642
Jemmap@lansons.com
