England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to “review the ways in which” mediation is “encouraged and positioned within the civil justice system.” In October, 2017, the Working Group issued its “Interim Report.”
Low Value Cases and Litigants Without Means
One focus of the Working Group is on “low value cases” and “litigants without means.”
Here are some findings and conclusions in the Interim Report on mediation for such people and cases:
–Mediation “can benefit low value cases,” based on the experience of mediation processes in “small claims” courts; and
–The Working Group wants to “encourage discussion as to how this section of cases could be better served.”
But, the Working Group acknowledges that “there are special challenges” for mediation of such cases. Two examples of such challenges are:
1) Pro se Parties: There is an “ethical problem for” a mediator “when he or she is dealing with unrepresented parties.” The Working Group:
–invites a “debate” on dealing with “ethical and legal problems” arising when the mediator “effectively begins to advise a party as to his or her rights or assist in the drafting of the settlement agreement”; and
–is “aware that” in such situations “it is often almost impossible to avoid” assisting in the latter.
2) Funding. There is a “challenge of funding,” even when “it is only funding the burden of the administrative overhead”.
–Even with pro bono mediation, “the challenge has always been” the “sustainability of the administration that is needed,” not “the availability of willing, trained” mediators.
Judicial Early Neutral Evaluation
Additionally, the Working Group points to a “judicial ENE” (Early Neutral Evaluation) program as having “a contribution to make” to this discussion. This program “is free.” And, in some courts, it is “compulsory.” The Working Group reports that:
–“certain county courts” are “using robust ENE hearings conducted by Judges in their small claims lists,” where attendance “is compulsory” in that the claims or defenses of “parties not attending” can be “struck out”; and
–“members of the Working Group have experienced its usefulness,” especially in avoiding ethical challenges mentioned above for mediators dealing with pro se parties.
The Working Group offers this concluding recommendation:
“A debate is required . . . as to how the challenges of sustainable, accessible, ethically safe, quality assured mediation provision can be made for cases of lower value which are likely to involve at least one unrepresented party.”
Application to U.S. Bankruptcy Cases
Issues, concerns and possibilities identified in England and Wales, for “low value cases” and “litigants without means,” are similar to what we experience in bankruptcy courts here in the U.S.
ABI Consumer Commission
The American Bankruptcy Institute’s Commission on Consumer Bankruptcy is evaluating mediation issues and possibilities. And we look forward to its findings and recommendations, which are expected in December 2018..
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