TIANA, as Margaret Thatcher didn’t quite say. There Is An Alternative.
Going into the Covid pandemic, lengthy delays and unnecessary costs were a standard part of dealing with claims in the civil justice system. Today, waits for your day in court are even more significant as traditional infrastructure – and traditional thinking – struggle to cope.
For the consumer, the result is obvious, with access to justice delayed meaning access to justice is denied. The frustrations and the added friction between opposing parties are in nobody’s interest, and so it follows that seeking ways to address these must be in everyone’s.
Alternative dispute resolution (ADR) is already in widespread use in parts of the justice system, but in some areas – notably personal injury but others too – it remains largely at the concept stage.
The government gave assurances that ADR would be an integral part of its new litigant-in-person portal for making minor road-traffic accident (RTA) injury claims, now operational. This pledge was withdrawn amid concerns that there was an inadequate market capacity to deliver the service, but the ever-lengthening court delays mean the need for it remains as acute as ever.
Claimants may need to go to court up to four times to settle a relatively minor claim because there is no other way of resolving disputes. The inequality of arms between an individual claimant and the often-mighty defendant compensator’s legal team is obvious, but equally, delays and costs are of little help to insurers wishing to settle claims one way or another as soon as possible, and especially those which take customer service seriously.
The government may be for turning on this, not least because Sir Geoffrey Vos, the Master of the Rolls and head of civil justice in England and Wales, has indicated his strong support for ADR. But claimants should not have to wait for action which could be years away, with Ministry of Justice officials already struggling under the pressures of existing backlogs, court reforms, the new portal and budgetary constraints.
Industry-led solutions have begun. One pilot with an insurer and ACSO members Minster Law, Nuvalaw and Trust Mediation used binding arbitration to settle 39 RTA claims within an average of 2.5 working days, with the quickest settlement time being just 24 hours. This compares to well over a year if they had gone to court.
Another such ADR pilot has achieved average settlement times of 6.7 days and an average £550 reduction in claims costs for insurers. Claimspace, part of Handl Group, another ACSO member, has run the independent scheme in conjunction with Verisk and successfully processed more than 100 cases through to settlement with three participating law firms, including ACSO member Slater and Gordon and two major insurers. The programme started in January 2021 and is still running.
Technology is enabling this remarkable progress, and if parts of the legal services industry before the pandemic were often less than enthusiastic about embracing change, it is clear through both working practices and investments in IT since that this is increasingly no longer the case.
Lengthy, expensive and often intimidating court processes are an absurdity for many if not most low-value cases. ADR schemes address this and are also a real-world example of co-operation between claimant and defendant organisations, proof that collaboration can exist on the ground rather than just being a buzzword bandied about at industry events and then back to business as usual.
There is an alternative. Consumers need the wider claims sector to pursue it with a real sense of purpose and it’s welcome that progress is already being made.
Author: Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations (ACSO).