This article is taken from the June 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

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What are courts for? Top marks for saying that criminal courts determine guilt and apportion punishment. But I’ll have to mark you down if you said the civil and family courts are there to decide any disputes that litigants care to send them. That’s the last thing judges want.

You can’t blame them. They were overwhelmed before the pandemic. Courts simply don’t have the resources to resolve more than a tiny handful of the financial disputes that arise between businesses and their customers; between the state and those claiming benefits; or between families who have gone their separate ways.

So the judiciary looked around for alternative methods of dispute resolution — arbitration, conciliation and mediation, for example. Don’t dismiss these as “alternative”, insisted Sir Geoffrey Vos, the senior judge responsible for all the civil courts of England and Wales. Resolving disputes without going to court should be mainstream, the first thing you try.

During the pandemic, the proportion of mediation conducted remotely soared from 2 per cent to 89 per cent

Taking his strictures to heart, the government launched a call for evidence last summer on what it called “dispute resolution”. That confused people as the term was defined to exclude litigation which is still, for many people, the main way in which the law resolves disputes. Vos had to find other terminology to distinguish between claims decided by the judiciary and what he now calls non-court-based dispute resolution.

In March, the Ministry of Justice summarised responses to its call for evidence. There were no great surprises. Parties with emotional attachments to entrenched positions — such as parents fighting over their children — were less willing to settle their differences. 

Indeed, separated couples were less likely to know that family disputes could be resolved without going to court, either because they had no lawyers to advise them or because some lawyers were reluctant to refer them to faster, cheaper solutions. That said, allegations of domestic or sexual abuse are likely to need court hearings.

The fundamental problem identified by the call for evidence was that there is no evidence to be called for. Nobody in the UK has conducted empirical research into the fairest way of resolving disputes. The Legal Education Foundation — an independent grant-making charity — complained that the government had not given it enough time to commission a full systematic review.

During the pandemic, the proportion of mediation conducted remotely soared from 2 per cent to 89 per cent. Again, no surprise. But is it better? In family cases, being physically distant from the other party was often seen as less stressful. On the other hand, mediation is more likely to work if the mediator can build a face-to-face rapport with the parties, drawing them closer to each other as the day goes on.

What next? The Ministry of Justice seems to have little idea. “The information gathered from this consultation exercise,” it said in March, “will inform the government’s developing work on how to utilise dispute resolution processes to deliver swifter, more cost-effective and more consensual access to justice. Any future policy proposals will be subject to further public consultation.”

But Vos, who as Master of the Rolls is head of civil justice, has seen the future and says it looks like a funnel. “It starts with any would-be claimant being able to go to a single well-publicised website or app to be directed, after entering some basic information about their claim, to the appropriate pre-action or court portal in which their claim can be either resolved or progressed.”

A pre-action portal is simply a website that helps the parties resolve disputes. For example, a well-established not-for-profit company called Claims Portal handles personal injury claims against insurers worth up to £25,000. 

It’s intended for use by lawyers and so unrepresented claimants are likely to find it daunting. But court portals — such as the latest “get a divorce” service in England and Wales — are designed for people with no legal knowledge.

If a dispute can’t be resolved at the portal stage, Vos envisages that the information already provided by the parties would be transferred across to the digital court process. “Litigants in person will be able to bring many simple claims without the assistance of lawyers,” Vos said in a recent lecture. That would create greater access to justice.

The Vos funnel has not been greeted with unalloyed enthusiasm. Consumer groups say the digitally challenged will require more assistance than is on offer. Commercial lawyers don’t want their expensive cases squeezed through the same channel as a dispute with the local builder. Still less do they relish their exquisitely drafted, prolix and hugely expensive formal pleadings being replaced by responses to a decision tree.

At the end of April, Parliament authorised the creation of a new online procedure rule book for civil, family and tribunal hearings. It sounds boring — but Vos sees it as a “revolution” that will create a quicker and less costly dispute resolution process without compromising the principles of justice. And that, surely, is what the civil courts are there for.