Compulsory alternative dispute resolution: a brave new world

On 12 July 2021 The Civil Justice Council published its long-awaited report on compulsory alternative dispute resolution (ADR). A link to the report can be found below and, spoiler alert, the title gives away the summary and conclusion of the report. 

Mandatory (alternative) dispute resolution is lawful and should be encouraged | Courts and Tribunals Judiciary

For those readers who lack the time to read the 58-page report, here is a quote from Lady Justice Asplin, chair of the Judicial/ADR Liaison Committee and lead judge for ADR, which sums up the report.

'We have concluded that ADR can be made compulsory, subject to a number of factors. More work is necessary in order to determine the types of claim and the situations in which compulsory ADR would be appropriate and most effective for all concerned, both in the present system and in relation to online justice.’

'Our conclusions place another useful and powerful tool in the box. They also provide the opportunity to initiate a change of culture in relation to dispute resolution which will benefit all concerned.'

In response to the report Sir Geoffrey Vos, master of the rolls and chair of the Civil Justice Council, said: “As I have said before, ADR should no longer be viewed as "alternative" but as an integral part of the dispute resolution process; that process should focus on "resolution" rather than "dispute"”.

 This report opens the door to a significant shift towards the earlier resolution of disputes and, as someone who earns a living adjudicating, arbitrating and mediating disputes, it is pleasing to see that our legal system is finally beginning to recognise the importance of alternative systems of dispute resolution.   

So why has our judiciary concluded that mandatory ADR is the way forward? 

Could it be that litigation has just become too expensive in the UK? Is it because our courts have become clogged up with a backlog of cases that will take years to unravel and something needs to be done to provide quicker access to justice? Or is it because there is a recognition that parties sometimes need saving from themselves? Have lawyers just been too timid about promoting ADR systems to their clients?

These questions are all somewhat academic and the reality is that we are moving to a legal system in which courts will now routinely order parties to engage in ADR processes. This will be the case particularly where the judge has formed the view that some form of ADR is required to promote a prompt and economical resolution of the dispute. 

Mediation is one such form of ADR and there has been a long and sustained move by the courts to encourage mediation in appropriate cases and to sanction parties with adverse cost awards where one party has unreasonably refused to engage.

So how do mediators feel about the prospect of being called upon to deal with cases where one or more parties are participating in the mediation because they have been compelled to do so?

It is going to be interesting to see if the compulsion element will engender a “tick in the box” approach to mediation. Will parties seize the opportunity to participate actively in the mediation and achieve a resolution of the dispute with a solution of their own making?

As one who has been in the mediation game for over 22 years, let me share a couple of my experiences with you.

Firstly, it is far from unusual to encounter one or more parties who have agreed to mediate simply to avoid an adverse cost sanction from the Court. The job of the mediator in such circumstances is to persuade the reluctant, probably cynical, party that it is really worth engaging to see what can be achieved. Ultimately, it is all about persuading a party that they are there anyway so they may as well give the mediation a chance.

The second thing I would say is that it is far from unusual to “hit the wall” in a mediation when one, two, three or more parties in the mediation tell you that they have reached the “end of the line” and the situation is hopeless.  An experienced mediator will usually find a way around a blockage of this type or, in my case, die trying! 

So, what is my conclusion? Compulsory ADR is a good thing that will save time, costs and create options for resolving disputes that are simply not available in the courts. It really is time to embrace the new ADR landscape coming to a court near you.