Government Departments and agencies make these commitments on the resolution of disputes involving them:
Alternative Dispute Resolution (ADR) will be considered and used in all suitable cases wherever the other party accepts it.
In future, Departments will provide appropriate clauses in their standard procurement contracts on the use of ADR techniques to settle their disputes. The precise method of settlement would be tailored to the details of individual cases.
Central Government will produce procurement guidance on the different options available for ADR in Government disputes and how they might be best deployed in different circumstances. This will spread best practice and ensure consistency across Government.
Departments will improve flexibility in reaching agreement on financial compensation, including using an independent assessment of a possible settlement figure.
There may be cases that are not suitable for settlement through ADR, for example cases involving intentional wrongdoing, abuse of power, public law, Human Rights and vexatious litigants. There will also be disputes where, for example, a legal precedent is needed to clarify the law, or where it would be contrary to the public interest to settle. Government Departments will put in place performance measures to monitor the effectiveness of this undertaking.
The Pledge was announced by the then Lord Chancellor in March 2001.
This is the second Monitoring Report. The first, for the year up to March 2002, recorded that Government Departments had attempted or used Alternative Dispute Resolution (ADR ) in 49 cases. As was noted then, this figure provided a baseline against which we could measure the level of use of ADR by Government.
This report is in four sections, the first Activity under the Pledge gives details on activity in the last 12 months, Illustrative Cases gives some examples of the use of ADR in Government, Developing Awareness of ADR provides information on training and awareness programmes undertaken by Departments and the last section, Other ADR Activity, describes some of the initiatives Departments are putting in place.
Departments, their Agencies and the National Health Service Litigation Authority monitor their use of ADR, sending statistical information to the Lord Chancellor's Department (now the Department for Constitutional Affairs) which collates this report. Information received in the Department shows that the number of Government disputes in the financial year 2002 - 2003 where a method of ADR has been used or attempted, is 617 - an increase of over 1200% on the previous financial year.
Of the 617 offers of ADR made, 27% were accepted and of those cases where ADR was used, 89% had settled without recourse to a hearing.
This information provides evidence of a significant increase in the level of ADR activity in Government Departments and demonstrates the Government's growing commitment to a culture of settlement rather than a culture of litigation.
Departments have estimated savings of over £6m, attributable to their use of ADR over the period of the report. That said, it has not been possible to quantify potential savings in every instance.
In line with the Pledge and with guidance issued by the Office of Government Commerce, Departments have included ADR clauses in standard procurement contracts.
It should be noted that very many disputes are settled by informal negotiation processes which do not strictly fall within the definition of ADR. For instance, settlement meetings between clients and their legal representatives are used as a means of resolving disputes - especially in personal injury and commercial matters. The headline figures do not reflect, therefore, the very substantial number of disputes which are resolved outside of a formal ADR process and without recourse to litigation.
During the period of the Report, Government Departments have used and continue to use ADR methods to settle a wide range of cases.
The following examples of the use of ADR give only a flavour of the actual experience, because agreements reached through an ADR process are subject, generally, to confidentiality agreements restricting the information which can be released.
Mediation was very successfully used to come to a settlement on contract claims in relation to the Foot-and-Mouth Disease. While it is not possible to give names, the process allowed frank discussions between the parties. It also allowed both parties to take a realistic view of their respective cases.
Mediation was used in a complex case involving allegations of sex and race discrimination and as a result we managed to reach agreement on virtually all the issues of concern to the parties. We could not resolve all the issues before the date of the Tribunal hearing but the effect of the mediation was that the litigation was far less antagonistic than it otherwise would have been. In this case that was a very positive outcome.
The Alder Hey organ retention group litigation (comprising around 1100 claims) was settled by way of mediation. This three day mediation proved to be an effective method of settling the claims. The settlement included financial compensation but it was the ability to discuss non financial remedies which ensured a successful conclusion. The families involved produced a 'wish list' and this resulted in the provision of a memorial plaque at the hospital, letters of apology, a press conference and contribution to a charity of the Claimant's choice. This was the first mediation of a group action undertaken by the NHSLA.
In another case, the Claimant suffered from partial deafness and problems with balance as a result of a medication error. Liability had been admitted, but the claimant was unwilling to leave the hospital and this meant that the bed could not be freed up for other patients. During discussions, the Claimant agreed to leave the hospital which solved a long standing bed blocking issue for the trust. An interim payment was also agreed.
A high profile fraud case was settled after a marathon 17-hour mediation conducted by the Centre for Effective Dispute Resolution.
Mediation was also used in a clinical negligence case where liability was in issue. The mediation was a success and both parties felt that the settlement was fair in the circumstances.
The Home Office last year resolved a complex and long running dispute, involving a Non-Departmental Government Body, in a 2 day mediation, with a saving for the Home Office of about half a million pounds.
Although we referred to this case in last year's Annual Report, it properly belongs in the report for this period.
The Ministry of Defence reached an agreement over the claims of Kenyan tribes people alleged to have been killed or injured by unexploded ordnance on training ranges in Kenya used by the British Army. The claimants had been granted legal aid to pursue their claims in the UK. This issue had been in dispute for 2 years, but was resolved following a 2 day mediation in London.
Government activity on the Pledge has been and continues to be supplemented by awareness courses and training of Government legal practitioners.
Priority was given to Civil Litigation where eight of the department's lawyers, those who had the most immediate need, received ADR training with further training scheduled this year for staff within other litigation areas.
Training has been provided by DEFRA lawyers to senior administrators and other selected units who frequently deal with contentious matters. Further training has also been planned for all lawyers. DEFRA's experience has been that the best form of training is actually to do a live mediation.
A group of lawyers attended a talk by a qualified mediator and director of the Centre for Effective Dispute Resolution (CEDR) and the Head of Litigation Division in Treasury Solicitors on How to make the ADR Pledge work in May 2002. The session covered the benefits and applications of mediation; preparing for mediation (skills required and problems encountered); how to enlist the help of the courts and case studies.
Lawyers have also attended ADR workshops at the Treasury Solicitor's Department. In addition, some attended a talk at the Treasury Solicitor's Department by the director of Conflict Management International, on making ADR work in a public law and regulatory context. The focus of the lecture was to promote awareness of how mediation-type procedures could be useful in government decision making.
A director in the Legal Group of the Office of the Deputy Prime Minister, undertook training with CEDR and qualified as a mediator in June 2002.
Solicitors in the Department for Work and Pensions also provide legal services to the Department of Health, the Office of National Statistics and the Food Standards Agency. All lawyers involved in litigation had received ADR awareness training in 2001-2, as did many other lawyers and trainees. During the period of this Annual Report, training was extended to lawyers serving client departments, with 9 lawyers undertaking training arranged by Treasury Solicitors. Consideration is currently being given to how best to make awareness training available to support staff.
Two members of staff qualified as mediators.
In April 2002 the Head of Litigation set an objective to promote ADR in the Litigation Division.
ADR awareness courses, specifically designed for the Treasury Solicitor's Department, have been run throughout the year by two very experienced mediators. In the year to 31 March 2003, 176 personnel from Litigation Division attended these courses. Another 30 personnel attended a recent further awareness course, leaving approximately 40 from current staff figures to be trained in the near future.
Day long practical ADR courses, which include role-play mediations, have been run by CEDR and A Commercial Initiative for Dispute Resolution (ACI). The CEDR courses have also included follow-up sessions to discuss progress made. Approximately 80 people have attended the CEDR courses since April 2002, and the process is ongoing. ACI have run a practical course specifically for lawyers in the Commercial Group within Litigation Division, and further courses are planned for lawyers in the Employment Division as well as the Personal Injury and Public Law Groups.
Further courses on ADR have been held including ones on Arbitration and Adjudication in the Construction Industry - when approximately 20 attended and Making ADR work in a Public Law and Regulatory Context which over 60 people attended.
Both the Head of Litigation Division and the Head of the Commercial Group in Treasury Solicitors, have attended the week-long mediator training courses run by CEDR.
The European Commission Green Paper on Alternative Dispute Resolution
The Green Paper , issued in April 2002, sought views primarily on whether there was a need for Community action on ADR across the spectrum of civil and commercial matters, which includes family. The Government welcomed the Green Paper but urged the Commission to be cautious before attempting to introduce regulation for ADR, and concentrate instead on initiatives that encourage best practice and facilitate the use of ADR in civil disputes. The Government strongly supported the view that mediation in family matters should be dealt with separately and that a field by field approach is more suitable for the remainder of civil work.
Her Majesty's Customs and Excise is developing a strategy to achieve a shift in culture and promote greater awareness of alternative methods of dispute resolution. The Department remains committed to the ongoing use of ACAS (Advisory, Conciliation and Arbitration Service) in employment disputes and retains qualified mediators on its staff to that end.
The Office of the Deputy Prime Minister encourages the use of mediation in planning disputes. For example, the new Inquiries Procedure Rules for major infrastructure projects, introduced in June 2002, provide for mediation to be used to facilitate the inquiry, eg in respect of disagreements over evidence. However, mediation does not replace the inquiry. The use of ADR procedures is also promoted in the new Circular on Compulsory Purchase (published in February).
Following the establishment of the Department for Work and Pensions in 2001, work has been carried out drafting new policies and Guidance for the new Department. In the Department's new policies for "Grievances" and "Harassment, Discrimination, Bullying, Discipline, Diversity and Equality" the emphasis has been on settling the dispute as quickly and at as low a level as possible.
The Department of Health has a similar approach to the Department for Work and Pensions. In addition in the last year it has established an in-house mediation service which is aimed at resolving all disputes relating to personnel matters long before they reach the Tribunal stage.
The National Health Service Litigation Authority and the Legal Services Commission have been working on an ongoing initiative with the Association for Victims of Medical Accidents to encourage the use of ADR and particularly the training of suitably qualified mediators to deal with issues arising in a clinical context.
The Lord Chancellor's Department (now the Department for Constitutional Affairs) has set up a pilot mediation scheme to handle complaints and grievances for staff in the London Crown Court Group, the Royal Courts of Justice, the Principal Registry of the Family Division and the Court Funds Office.
The Treasury Solicitor's Department is developing a brochure on ADR to send to clients to explain the various procedures available. A guide to ADR is also being prepared for use by lawyers within the Department.
A formal pilot scheme has been implemented in the Eastern Area of the Prison Service (East Anglia), in conjunction with Home Office Legal Advisers, where suitable officer claims are identified for possible mediation. The scheme has been extended informally to officer claims throughout the Prison Service.
Towards the end of the year, the Employment and Commercial Contracts Group approached the solicitors acting for a public sector union to see if a system for settling employment disputes could be established before such cases got to a tribunal. Discussions are ongoing.
Claims handlers from client departments were invited to attend the one-day practical ADR training, thus giving them experience of role playing along with lawyers in a simulated mediation.
A further demonstration of the Government's commitment to ADR is the work currently being undertaken to pilot a mediation scheme for use in resolving disagreements concerning application of the Compact on Relations between Government Departments and the Voluntary and Community Sectors. This scheme was developed by a joint voluntary sector - cross-Government working group with the assistance of CEDR.
The GLS Liaison sub-group meets on a quarterly basis. The membership is drawn from a number of Departments: Treasury Solicitor's; the Department for Work and Pensions; the Department Of Trade and Industry; the Department of Environment, Food and Rural Affairs; the Home Office; Customs and Excise; the Office of the Deputy Prime Minister and the Department of Transport; the Lord Chancellor's Department and the Office of Government Commerce. It is chaired by the Director General of the Legal and International Group in the Lord Chancellor's Department. Activities over the last year include -
Members of the ADR Sub-Group met with directors of CEDR on 5 September 2002 to discuss the promotion and use of ADR within Government.
A member of the ADR Sub-Group, together with lawyers and administrators from other departments, attended a focus group meeting at CEDR chaired by Lord Hurd on 8 October 2002.
The ADR Sub-Group has reviewed CEDR's draft Guide for Managers and Administrators in Public Authorities, which is due to be launched shortly.