Alternative Dispute Resolution in Jersey

Alternative Dispute Resolution (ADR) was launched in Jersey, when, on 8 June 2004, the Royal Court (Amendment No.20) Rules 2004 came into force and a new Rule 6/21B was inserted into the Royal Court Rules.
The new provision stated that: "the Court may at any stage of any proceedings either on the application of any party to the proceedings or of its own motion direct that the proceedings be stayed for such period
as the Court thinks fit to enable the parties to try to settle the proceedings by alternative dispute resolution."
"Alternative dispute resolution" is defined in the new Rule as "any method of resolving disputes otherwise than through the normal trial process and…includes mediation and conciliation".
Mourant Ozannes has considerable expertise in resolving commercial disputes by the mediation process and is well aware of its very real advantages to clients.
How does ADR work?
Imagine the following situation. Two or more parties are in dispute and have started proceedings in the Royal Court. The case has gone through the pleadings stage and there have been a number of skirmishing applications over preliminary points. Legal fees are escalating and the case does not seem any nearer a final determination, but the underlying issues are important and urgent for the parties.
The case reaches a directions hearing at which the Royal Court make orders for preparing the case for trial. The Judge presiding asks the parties' Advocates: '"Have you tried to resolve this case through ADR? No? Why not? Is the case suitable for ADR? Possibly? Then I will order that this matter be stayed for 30 days to enable the parties to try to settle it through alternative dispute resolution."' The parties leave Court. The lawyers suggest mediation which is the most frequently used form of ADR in the UK. What does this involve?

Mediation
The parties agree on a neutral third party accredited mediator. Twenty-one individuals are accredited mediators for civil commercial mediation in Jersey. One of these could be used or a UK based mediator brought in.
The parties sign a mediation agreement which records that mediation is a nonbinding, confidential process and that the mediators' costs will be shared. The mediation is attended by representatives of parties authorised to agree a settlement. They may or may not be accompanied by their lawyers.
The mediation itself is preferably held at a neutral venue typically over the course of a day. The parties meet in the same room with the mediator and each party is then given the chance to make an opening statement in which they have the opportunity to state the strengths of their case. The mediator then asks each party to withdraw to separate private rooms where the mediator meets with each of them in turn to try to establish what each party really wants to achieve out of the dispute and areas of common ground between the parties. The mediator may ask difficult questions but cannot force an agreement or impose a solution. The mediator does not act as a judge. This shuttle process continues until the terms of a possible settlement are agreed or until one or more parties decides to discontinue or the mediator concludes that an agreement is impossible and ends the process.
If a settlement is agreed its terms are recorded in a settlement agreement. If the parties sign the settlement agreement it will become binding and enforceable as a contract. The settlement agreement may require approval by the Royal Court.

If a settlement is not reached the parties will return to Court to say that a settlement has not been reached (they cannot comment why, as what was said at the mediation was agreed to be confidential) and the Court process will continue. They will have lost some time and incurred extra costs, but the mediation may have clarified the issues between them.
The mediation outlined above could have taken place at any time in the dispute from before the instruction of lawyers to even after trial, where the Court's judgment is being appealed.

Conclusion
Mediation or other forms of ADR are not a panacea and may not be suitable for all cases. However, their principle advantages are that they allow the parties to retain control over the dispute process and its resolution. They can be used at any time and have achieved high success rates in, for example, the mediation scheme in the Petty Debts Court. The Royal Court is facilitating ADRs introduction in Jersey and law firms must adapt to this significant change.
However, the use that will be made of mediation in future will ultimately be decided by clients.