PAP Consultation: mandatory "good faith" and Stocktakes

Pre-action Protocols Consultation - deadline extended to 21 January.

The Civil Justice Council is consulting on the Practice Direction and the18 PAPs now in force. No recommendations are made at this stage but "options" are outlined. There are two areas where mediator input will be useful and the wider detail is relevant and should have comment from other specialist practitioners.

I was part of a small drafting group that prepared the first PAP (the personal injury and then the disease PAP) in the late 1990s / early noughties and it is interesting to see that the structure (and some of the problems) are maintained and have been adopted in to many of the other PAPs that have followed.

As I have said it will be for litigators to comment on much of the detail but mediators can comment on a couple of the options: (i) that a duty of good faith to resolve should be introduced and (ii) the requirement that a joint stocktake report / list of issues should be prepared as a final step before the issue of proceedings.

Good faith - there will be instances where it is obvious that a party has just been going through the motions and the Court may well wish to intervene (and penalties are discussed within the report). In some instances the party dragged kicking and screaming to ADR will have realised that resolution is an available and sensible option and, because of a resolution, there will be no need to assess "good faith". My caution for the Courts arises in respect of mediator privilege: I would not want to offer a view or provide any evidence about a party's "good faith": to do so would harm mediation as a process more widely if parties opting for mediation thought that the neutral party they had instructed might be required to offer evidence about the mediation. Thus the "good faith" obligation to narrow differences and a non-exhaustive list of indicative steps / actions will be helpful but it would have to be for the parties themselves to explain to the Court whether they have exercised "good faith" - and they should not involve the mediator.

Stocktake - The report observes that there is often only a cursory attempt to comply with the pre-issue review by the parties and suggests that this step should be elevated to a "requirement". A draft of the stocktake form is at page 98 of the Report. I suggest that mediators can offer views on useful content or questions for parties. This could be based on the information that they find helpful in position statements or the questions that they ask in pre-mediation preparatory meetings. By way of example: "What are the (non-pecuniary / non-legal ) barriers to settlement?" Often in the difficult cases it is these issues that help to unlock resolution. Parties may be reluctant to answer these questions but they are worth asking. Perhaps a more nuanced question can be posed and views of other mediators would be helpful.

The deadline for responses has been extended to 21 January 2022. Click through on the link below to the CJC announcement and from there to the Report and Questions themselves.

https://www.judiciary.uk/announcements/civil-justice-council-launches-consultation-on-pre-action-protocols/