Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31LocalGovernmentLawyer Dispute Resolution 2016 9 In any event one respondent suggests that a fall in the number of judicial review challenges would be a mixed benefit. “Judicial review has the effect of putting pressure on decision-makers to consider lawfulness in their decision-making,” they argue. “Now there is less regard for lawfulness where councils are facing budgetary pressures. This is not good for people affected by decisions, but in the longer term it is not good for councils as without robust checks there will be a slide towards less good decision-making.” The internet of disputes Another high-profile initiative, being promoted by the judiciary and now the Ministry of Justice, is online dispute resolution (ODR), following a report published by Lord Justice Briggs, the Deputy Head of Civil Justice, this summer. A key recommendation – of more than 60 – was a proposal for an online court for money claims valued at up to £25,000 and “with minimum assistance from lawyers”; this court would eventually become the compulsory forum for resolving cases within its jurisdiction. Lord Justice Briggs’ online court – alongside a drive towards fixed fees being used more widely in civil cases – is a central plank in the proposed digital transformation of the justice system. Asked what they thought of a greater role for ODR, many respondents to the Dispute Resolution 2016 survey gave it a cautious welcome, particularly if it leads to reduced pressure on courts and judges and less need to travel and attend a court building. “Any measure to reduce time conducting litigation, or that facilitates resolution is to be supported,” suggests one. “Proper judge-led case management will address abuse and any increase in claims. But it must be in place....” ODR is also thought to be particularly applicable to areas such as council tax and debt. However, echoing the comments above on litigants-in-person, one respondent says: “Without claimants having access to legal advice at an early stage this is likely to become another vehicle for angry people to vent their grievances – much like other online platforms.” Another warns that “increased claims where litigants are misconceived for lack of legal advice may cancel out any gains in terms of time and costs saved”. There are also concerns that the Government will set the proposed threshold where use of ODR is mandated at too high a level; there appears little support for a figure as high as £25,000. Finding an alternative In the days before the internet, alternative dispute resolution (ADR) was widely touted as an approach that could reduce the number of court cases and save parties time and costs. Faced with increased claims and reduced resources, you might think that local authorities would make much greater use of this approach. But the survey finds that fewer than one in ten councils (7%) always use ADR, while 21% use it frequently. This leaves 64% who only use it occasionally and 8% who never use it at all. Significantly, only a third of respondents say their councils use ADR more frequently than they did three years ago; none use it a lot more frequently and 8% use it less frequently. The comments from respondents reveal why there has not been a greater uptake. While the advocates of ADR appoint to high success rates in resolving claims, the experience of local government lawyers has been somewhat mixed. One respondent does indeed claim to have enjoyed a high success rate – “and even if not it often leads to a settlement afterwards”. Another says that “when it is supported and the issues are identified at an early stage ADR can be very effective”, although they add that the problem is that “these are also the characteristics of successful dispute resolution without access to ADR”. However, the success of ADR “depends a bit on how entrenched the parties are,” suggests one lawyer. “Sometimes it can be a disaster but sometimes it works really well.” The usefulness of ADR can also depend on the type of dispute and the parties involved; “unrepresented parties do not see the need to make compromises,” comments one lawyer. Another writes that “at times it can feel as though we may be paying out when we should not, on the facts of the case, but when weighed against the litigation risk involved, it is the cheaper result although not necessarily the right result.” ADR is also seen as “generally unsuitable for disposing of unmeritorious claims”, while costs can also be an issue, with one respondent saying that “some litigants Fig 4 Fig 4