The right route

Lord Justice Jackson's report on civil costs actively further promotes the use of mediation. Often a faster and more economic settlement route, mediation nonetheless remains an underused tool. This is particularly so in cases of judicial review.

Judicial review of local authority decisions is increasingly common, with over 60 per cent of authorities handling up to ten annually and some involved in more than 20 each year. Few authorities appreciate when mediation can be employed and seldom does it figure in local authority judicial review cases. This is despite 80 per cent of mediated cases resulting in settlement, with both parties enjoying a flexible and confidential route to resolution.

Of course, mediation is not appropriate in all judicial reviews. Those examining the scope of the local authority's powers, its exercise '“ or non-exercise '“ of its powers and challenges to the lawfulness of an authority's policy would not be appropriate cases. However, any other types of judicial review are, in principle, suitable for a mediated resolution.

Where there is more than one potential solution to the dispute, or a need for a continuing relationship between the parties, mediation comes into its own. Multi-party disputes, those involving planning decisions and claims where a compromise or settlement can be foreseen also lend themselves readily to mediation.

Why is mediation underused?

Despite pressure from many angles '“ the pre-action protocol, the LSC funding code, the cost of such claims to the authority and the legal aid purse and the time they take '“ only three per cent of local authority judicial reviews are referred to mediation. Often, local authorities fail to even consider whether a particular dispute is appropriate for mediation. Some even see it a sign of weakness to suggest mediation. The tight time constraints on a judicial review also persuade lawyers to dismiss mediation, while their historical lack of familiarity with the mechanics of the process also steers them clear of this route.

Deciding when to employ mediation is a simple process that involves examining key elements such as the potential for more than one possible solution to the dispute, the importance of a continuing relationship between the parties, the need for speed and cost control and the desire for confidentiality.

Other factors come into play depending on the nature of the dispute, but one issue remains constant: the proven benefits of a third party to break deadlock and help parties reach a settlement that meets all their needs while reducing massively the time and cost of the legal process. Even by simply offering mediation '“ which may be declined by the claimant '“ the authority can argue for a favourable costs order if the claim ultimately succeeds.

Experienced mediators can quickly form an unbiased understanding of the claim and of what motivates the parties to determine their objectives. This enables the mediator to engage directly with the parties to build rapport which may facilitate resolution.

When to use mediation in judicial review

Of the few judicial reviews taken to mediation, an impressive 95 per cent resulted in settlement. When mediation might be the most appropriate route for a local authority to take can be illustrated by looking at some recent examples:

1. A local authority and a care service provider disputing the hourly rate the authority was willing to pay. If the local authority had commissioned services from other providers, it could have faced multiple judicial review claims from the individual users receiving care from the provider. Mediation was used to avoid the judicial review challenges.

2. Mediation was also employed to resolve a judicial review challenge by four local authorities over the star ratings they received from the Commission for Social Care Inspection.

3. Where a family challenged a local authority for failure to provide a care plan for a young woman with severe learning difficulties who had been sexually abused, the case was mediated and a settlement reached.

Mediation is best suited to be entered into at one of three stages:

1. following the issue/receipt of a letter of claim prior to the commencement of court proceedings;

2. after court proceedings are issued; or

3. after the court grants permission to proceed.

Given the high success rate when mediation is used in judicial review disputes, it is surprising that it remains a low priority for local authorities '“ especially in the current environment of budget and funding cuts.

It is hoped that many more local authorities and their legal advisers will consider more carefully the mediation route. It is an easy option to consider mediation to be inappropriate because it does require a degree of lateral, expansive and global thinking to identify whether it can be used in such situations to provide a total solution to the dispute. Even when it cannot, however, it can help resolve some issues (if not all) thereby saving time and cost and succeeding in narrowing down the key issues between the parties.

Statistics are derived from a report prepared by Nabarro LLP, 39 Essex Street, and the ADR Group. The report is available at https://www.nabarro.com