We have been looking at the series of recommendations for reform put forward by the Civil Justice Action Group in Scotland - and considering why the questions raised might be of wider interest. The article can be found here.
The second recommendation put forward by CJAG is that a 'triage' approach should be used at an early stage to help identify the most appropriate way of dealing with a dispute. The Report makes clear that it was unable to give full consideration to this proposal due to time restraints, however sets out the basic principles of how such a system might work.
The concept of triage is used in Australia to try and help resolve civil claims. This encourages the early analysis of a civil dispute, to ensure that if it enters the system, it is directed to the most efficient method of resolution. According to the Report "the Australian approach to ‘triage’ aims to improve the current situation whereby the place at which someone enters the legal system will largely determine the pathway they follow, regardless of whether this is the most appropriate pathway for their circumstances and problem. Within the ‘triage’ system, there is a responsibility to assess the needs of the individual case, what the best pathway is (be it information, assistance, dispute resolution or court adjudication of legal rights), and a commitment to help the person get to that destination."
In many respects the idea of triage already exists in that legal advice is usually sought at the outset of a dispute. By considering the most appropriate course of action at an early stage, proceedings can move forward in a more efficient manner. While there may be some merit in the triage approach, it would appear that as the likelihood of parties seeking legal advice increases, the effectiveness of any triage system would be reduced.
Where we see potential benefit in the triage system is where litigation involves a party litigant. Disputes between businesses tend to have been "escalated" through different types of dispute resolution - from discussions at project management and then senior management, to mediation and ultimately litigation. However when one party is not familiar with the dispute resolution process they can jump straight to, for example, litigation where another approach may be more suitable. Were a court led triage approach available in such circumstances, this could prevent drawn out proceedings by opening a line of communication between the parties and guiding them to alternative mechanisms for resolving their dispute.