Features: March 12th, 2010

By Gerard Khoshnaw

Most local authorities are handling almost one Judicial Review dispute every month, but few cases are referred to mediation. This is despite the fact that, in the great majority of cases, mediation results in a settlement. The author explains why mediation is neglected and how to choose cases to explore this avenue.

A new survey and report shows that, despite the many pressures on lawyers to use mediation in judicial review – including 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 3% of Local Authority Judicial Reviews are referred to mediation.

Yet the same survey shows that over 60% of Authorities are now handling up to 10 Judicial Review disputes annually and some are involved in more than 20 each year.

This betrays a lack of creativity and waste of money that could be saved by using mediation. After all, around 80% of cases referred to mediation settle.

By ignoring this highly successful route to settlement in public sector Judicial Review disputes costs are escalating unnecessarily and valuable management time is being locked up. The survey and report by Nabarro LLP, 39 Essex Street and ADR Group shows that few lawyers appreciate how (and when) mediation can be used.

The publication of this report coincides with the review of civil costs by His Honour Judge Jackson, which is anticipated to recommend that cost awards be based either upon each party bearing their own costs or upon the parties’ attempts to settle rather than the loser paying the winners costs.

Selecting cases for mediation

There are, of course, some types of Judicial Review where mediation may not help, such as disputes over:

• The scope of the Local Authority’s powers; or

• Its exercise, or non-exercise, of its powers; or

• A challenge to the lawfulness of a Local Authority’s policy

But any other type of Local Authority Judicial Review dispute is, in principle, suitable for mediation. In particular, mediation comes into its own in disputes where more than one possible solution is required; where there is a need to preserve a continuing relationship between the Local Authority and the other party; or where part of the claim is capable of compromise or settlement.

In Local Authority disputes where a quick resolution is of the essence – such as at various stages in the planning process – and where there is a great need to keep legal costs to a minimum, it remains surprising that the use of mediation is such a rarity.

Why is mediation neglected in Judicial Review?

A sneaking suspicion remains that mediation may appear to be a sign of weakness, giving the impression that Local Authorities do not want to defend a case.

There are other reasons why lawyers may steer away from mediation, such as the tight time constraints inherent in the Judicial Review process. This is why more creative thought is required in indentifying the cases appropriate for mediation.

Assessing when to choose mediation

Once it is recognised that the vast majority of Judicial Review disputes involving Local Authorities are suitable for mediation, the challenge for the Local Authority is to assess the ‘pros and cons’ of mediating the particular dispute with which it is faced.

A quick check list can help decide whether a particular case is suitable for mediation:

• Whether there is more than one solution to the dispute

• Whether there is a continuing relationship that should be preserved

• The importance of a speedy resolution

• Whether any third party interests are involved which could be represented in the mediation process

• Potential savings if the dispute is resolved by agreement.

• Whether confidentiality is a significant factor.

Local Authorities may also wish to bear in mind that if they offer mediation, and the claimant declines, and the claim ultimately succeeds, the early offer of mediation may assist the Local Authority in arguing that it should not pay some or all of the costs of the claim.

Examples of Local Authority disputes mediated satisfactorily

Real life examples of disputes involving Local Authorities demonstrate where mediation can be employed;

• Four Local Authorities challenged (by way of Judicial Review) the star ratings they received from the Commission for Social Care Inspection. The dispute was successfully resolved by mediation.

• A Local Authority and a provider of care service disputed the hourly rate the Authority were paying and used mediation to resolve the dispute as a means of avoiding Judicial Review challenges.. If the Authority had commissioned services from other providers charging the new hourly rate, the Local Authority could have faced multiple Judicial Review claims from individual service users who currently received service from the provider.

• Two Local Authorities who were in dispute went to mediation over which should bear the responsibility for providing care for a severely disabled individual. Authority A issued Judicial Review proceedings against Authority B and a three day hearing of the claim was anticipated. The outcome of the Judicial Review would have been “all or nothing”: the Court could not divide up responsibility between the two. The Local Authorities agreed to mediate in an attempt to resolve the dispute and succeeded.

• A Local Authority and a Primary Care Trust over whether an individual was eligible for NHS funded continuing care went to mediation over a disagreement. If the individual was eligible, the responsibility for funding her care package rested with the Primary Care Trust. If she was not, it was the responsibility of the Local Authority. The outcome of the Judicial Review would have been all or nothing and the Local Authority proposed mediation which succeeded.

• A challenge by a family to a Local Authority for failure to provide a care plan for a young woman with severe learning difficulties who had been subjected to sexual abuse from others whilst in Local Authority care was referred successfully to mediation.

When to enter into mediation

Often, the most appropriate stage at which the parties should consider mediation is once the issues have crystallised. The three stages at which a possible settlement can be achieved are;

(a). Following the issue and receipt of a Letter of Claim, and prior to the commencement of Court proceedings.

(b). Immediately after Court proceedings have been issued.

(c). Immediately after permission to proceed has been granted by the Court.

At any of these stages (depending upon the particular circumstances of the case) it is possible for settlement to be reached.

Given the negligible number of Local Authorities employing mediation in Judicial Review disputes, the new Report makes recommendations which would result in the greater use of mediation and significant cost savings.

Gerard Khoshnaw is with Nabarro LLP