Jackson LJ’s final report recommended that “there now needs to be a single authoritative handbook, explaining clearly and concisely what ADR is” and that “most judges and litigators would have the current edition of the proposed handbook on their bookshelves”.
The Jackson ADR Handbook was published in April 2013. It contains a foreword from Lord Dyson which says that the book is a direct result of Jackson LJ’s recommendation for such a handbook and that:
“It is properly authoritative. It is readily accessible. I cannot commend it more highly…”
The handbook really is essential reading for practitioners. It is also written in such a user-friendly way that it could be picked up by anyone who is involved in a dispute.
Guidance on using ADR
The front-end of the handbook includes guidance for those advising clients about the use of ADR. It includes chapters on the general principles of ADR, the range of ADR options, timing and the use of ADR in relation to the progress of a case, the roles and responsibilities of lawyers and parties in ADR and the funding of ADR procedures. There is also a section on using ADR prior to the issue of proceedings.
The chapter on funding of ADR procedures refers to cost management and proportionality, which I have discussed previously.
The handbook goes on to discuss the interplay between ADR, the Civil Procedure Rules (CPR) and litigation. This includes chapters on costs and cost shifting in ADR (that is, liability to pay for the process and recovery of ADR costs), and sanctions for refusing to engage in ADR processes.
Preparing for and attending a mediation
For those attending or advising their clients to attend mediation, the handbook moves on to discuss what mediation is and how it works, together with how to prepare for the mediation and what will happen on the day itself.
The chapter on preparing for a mediation includes practical, but important, points such as deciding the duration of the mediation, who should attend and the venue. The key stages to preparing for the mediation are shown in a flow diagram.
Guidance is given on how to prepare a position statement, including a suggested list of essential points it should contain. For example, it is suggested that an outline of the party’s case on the issues is included, but also that:
“It is important that the document persuades the other side of the merits of the case, and therefore the strength of the party’s negotiating position in relation to the disputed issues of fact or law. However, it should be written in a non-confrontational style.”
Guidance is also given on what an agreed bundle for a mediation should contain, such as Part 36 or other offers, and factors to bear in mind when selecting key documents, such as which documents enable the mediator to adequately test the other side’s case. This chapter ends with a section on risk assessment, which states that the lawyers for each side should identify the client’s objectives and plan a route map for how these can be achieved at the mediation. It concludes by stating that the parties should not underestimate the value of effective preparation.
Having such information to hand should allow parties to attend the mediation properly prepared. Equally, in the run up to the mediation, the parties should be able to refer to the handbook in support of a position they suggest, such as co-operating to agree a bundle.
The chapter on the mediation process includes a flow diagram showing the typical mediation process, but also emphasises the flexibility of mediation. Information about the opening stages of a mediation, the exploration and information stage, the negotiating and bargaining stage and the settlement and closing stage is set out. That the typical stages are set out in this way should mean parties arrive at the mediation fully prepared for what the day ahead may entail.
For those representing parties at a mediation, there is a section on mediation advocacy, which includes a discussion of the key differences between court proceedings and mediation that advocates should bear in mind, such as the aim at mediation being not to win, but to ensure that an appropriate settlement is reached.
Finally, for when the case settles, there is guidance on recording settlement agreements and enforcing them.
I said at the outset that this handbook is essential reading for all practitioners. I’ll borrow from Lord Dyson’s foreword to conclude:
“This book deserves to be the first and only port of call for every student of ADR irrespective of whether they are a litigant, a law student, a lawyer, or a judge.”