Lawyers Endorse Woolf Reforms As A Positive Change And In-House Welcome Judicial Powers To Introduce ADR

The MORI CEDR Civil Justice Audit is an independent assessment of attitudes and perceptions by experienced legal practitioners - both in-house and external - focusing on the effects the new Civil Procedure Rules (CPR) have had on the cost and speed of the settlement of cases. In particular, the survey focuses on how the use of mediation fits into their overall practice.

Both external advisers and in-house lawyers have opinions as to how the new CPR could be improved and their views, together with the analysis of the MORI Poll, will be the focus of debate at the Civil Justice Audit Conference on 7 April 2000 at the QEII Conference Centre at which both Lord Irvine and Lord Woolf will speak.

Reaction to the new CPR

Four out of five respondents are satisfied with the new CPR with 76% believing they have made a positive change on the culture for settlement. A higher percentage of respondents (36%) believe that litigation has decreased rather than increased (16%), with 47% reporting no change in caseload. Likewise the new CPR would seem to have had a beneficial effect on the fairness of outcome with 17% perceiving a fairer outcome as against 9% experiencing a less fair outcome. Almost half (47%) of respondents reported cases settling faster than before with 40% seeing little or no change and only 5% reporting cases settling slower than before.

The reforms would seem to have benefited in-house costs rather than external costs with 44% of external lawyers, against only 26% of in-house lawyers, experiencing higher legal costs for cases since the introduction of the new CPR.

Spontaneous comments reveal further differences of opinion between the two elements of the legal profession. Almost twice as many external lawyers than internal lawyers say that 'Part 36 offers' have had the most impact on litigation practice (62% and 32% respectively). One-fifth of external lawyers consider 'costs' to have affected litigation, compared to only six percent of internal lawyers. In contrast, three times as many internal lawyers as external consider 'fast track' to have affected the speed of litigation (24% and 8% respectively).

The majority (48%) of respondents believe that the new CPR have treated parties equally, but 37% believed they have favoured Claimants.

Implications for mediation

"This could be due to the introduction of the new Part 36 claimant offer provision which is widely believed (74%) by external advisers to make the settlement of cases easier," says Eileen Carroll, former litigator and now practising international mediator and Deputy Chief Executive of CEDR. "This statistic may also explain why Defendant parties are currently twice as likely to initiate mediation (35%) as against the Claimant party (15%)."

There is a consensus among in-house and external lawyers that Judges should initiate settlement discussions (60% in favour, 28% disagreeing). However when it comes to specifics there is a separation of the ways. 78% of in-house lawyers believe mediation should be required at some point if a business dispute goes to court as opposed to only 40% of external advisers.

Further disparity is shown on the issue of costs against parties who refuse to take part in ADR - 56% of in-house lawyers agreed that they should be issued (28% disagreed) whereas and only 26% of external advisers agreed (50% disagreed).

Eileen Carroll believes, "These figures, in particular, should be taken by external advisers as a clear sign that their clients want to be given the opportunity to try mediation, particularly as an alternative to court and that it is most probably the reticence of the external adviser that is preventing them doing so. This was certainly my experience as a litigator and as mediator I all too often see an eager client alongside a nervous adviser!"

Internal and external lawyers do not always agree that 'cases should not be stayed while settlement discussions are underway' - 46% of in-house lawyers agreed with this statement as opposed to 28% of external advisers. Interestingly, out of the ten judges responding to CEDR's Judges' Questionnaire, seven commented they would stay a case when requested by one or both the parties.

Details of CEDR's Civil Justice Audit Conference at which these findings will be debated can be found on the conference web site: www.cedr.co.uk/conference or by telephoning event organisers BCM on telephone 020-7722 9731.

The MORI Poll was made possible by a substantial grant given to CEDR by one of its member firms, Addleshaw Booth & Co who also allowed total independence when carrying out the study and analysing its findings.

The Civil Justice Audit is based on three elements. Two quantitative surveys, one by MORI among lawyers and the other a questionnaire sent by CEDR to 30 judges, and a qualitative study conducted by CEDR with anecdotal evidence gathered from five focus groups around the country.

CEDR (the Centre for Dispute Resolution) is internationally recognised as providing expert third party conflict management and unparalleled mediator training.

CEDR is a not-for-profit organisation with charitable status. Its mission is to encourage cost effective dispute prevention and dispute resolution in commercial and public sector disputes and in civil litigation. CEDR operates in the UK and internationally and has been instrumental in helping to bring ADR into the heart of business practice and into the judicial system.

CEDR has managed over 3,000 mediation referrals covering every industry sector and a wide-ranging cross section of disputes and case values ranging from less than 1635,000 to 1631bn matters.

Technical details

MORI, an independent research firm based in London, made 899 calls to law firms and corporations in England between March 1st - 10th, 2000. They completed 100 telephone interviews involving 23 questions each plus two screener questions to establish if the respondent was eligible to take part. Of that sample, 50% were the head of litigation of external law firms and 50% were corporate or in-house lawyers. Each interview was no more than 10 minutes in length, and all the persons who completed the poll said they were actively involved in litigation and claimed to know "a great deal" or a "fair amount" about the new Civil Procedure Rules. Of the total respondents, 59% had been involved in litigation for more than 10 years. Names of external lawyers were chosen from the CEDR database of the top 340 national law firms (ranked by number size and turnover) of which 66% of the respondents were from the top 200 law firms in London. The list of 620 corporate lawyers was drawn from both the CEDR database and Dun & Bradstreet and the latter were organisations with an annual turnover of 16310 million or more. In total, 83% of the respondents were from the South of England, 11% from the Midlands and 6% from the North. All the fieldwork for the MORI Poll was carried out by FACTS International in Kent, with fully trained and experienced interviewers using CATI (computer assisted telephone interviewing).