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Mandatory (alternative) dispute resolution? That old chestnut ….
July 19, 2021
Abigail Holt considers the potential of the Civil Justice Council’s report, ‘Compulsory ADR‘ which says ‘ADR can no longer be treated as external, separate, or indeed
alternative to the court process’.
It has been said many times before, but resolving disputes amicably and in private is cheaper and a lot less stressful than the high stakes of going to a final court hearing. Having a judge resolve a case is often intimidating, exhausting and expensive for those stuck with the process. In a sense, a judge deciding a case represents ultimate loss of control at the end of a process which is usually long, complicated and in which litigants and their lawyers have tried to micro-manage the development of their evidence to put their dispute in the best light.
Against this background, there has in the UK long been “push back” against mediation and “alternative” ways of resolving disputes, despite the fact that much civil litigation does in fact end in a negotiated settlement; often right at the end of the process when energy, time and money has already been expended.
Objections to mediation as a way of resolving disputes have included that a mediated settlement made in confidential circumstances obstructs the evolution of the law in novel areas; that fairness demands that that parties with genuine disagreements about the facts giving rise to their disputes or the interpretation of expert evidence are entitled to their day in court; that ways of resolving disputes outside the formal justice system “privatises” what is the public role of the courts, thus somehow watering down notions of justice. These philosophical old chestnut objections have frequently been wielded in a game of intellectual conkers in which alternative ways of ending disputes are seen as a soft option for those at the tree-hugging end of the litigation spectrum.
So the publication this month of the Civil Justice Council’s report, at the behest of the Master of the Rolls, which concludes that mandatory Alternative Dispute Resolution (“ADR”) does not breach the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights, is welcome news.
The report concludes that litigants should not be forced against their will to settle their legal disputes. Rather, the report advises that litigants should be compelled to engage in an alternative dispute process, but only “where a return to the normal adjudicative process is always available”; that is to say, parties could be forced to try mediation but only if they can bail out and resume the “normal” procedure to judge-made final determination if they decided that ADR was not working for them. The CJC report also suggests that there should be sanctions for parties who did not participate in the ADR system, observing the principle that consequences follow when court orders are not followed.
Civil-Justice-Council-Compulsory-ADR-report-1.pdf (judiciary.uk)
One of the Civil Justice Council recommendations is that there should be greater use of judge-led ADR processes “given they are free and appear effective in the contexts in which they are already compulsory”. Interestingly, I recently attended a lecture when a senior judge from the Administrative Court in Hamburg, Germany, who described how even public law cases there were often referred by the case-managing judge to another judge for mediation. The mediator judge used completely different techniques in a confidential setting to enable the parties to explore their dispute with a view to finalising it. Where mediation did not succeed, then the case was allocated back to the usual route and the mediator judge was no longer involved and her/his notes did not form part of the case file.
In short, the shift towards requiring parties to give ADR a genuine try envisages a win-win situation for all concerned. Parties will be forced to make an appraisal of the strengths and weaknesses in their case sooner, with more encouragement not to dig their heels in and become locked in dispute, and with the reassurance that they can revert to a judge-made final decision. Being required to consider ADR is likely to mean that parties do so at an earlier stage in the case, meaning that, overall, money, time and effort is likely to be saved.
To return to the arboreal analogies, “from acorns grow mighty oaks”. The thorough, measured and practical suggestions from the Civil Justice Council look to set civil cases on a different trajectory; a trajectory which gives parties to disputes more control over how they end their dispute and, if the alternative resolution techniques are used in a timely manner and wisely, then the parties will be saved time, money and effort.
At Garden Court Mediation we’ve always known that a decision to mediate is a “no brainer”; that even if the best time to plant a tree was 20 years ago, then the next best time is now; and that goes for disagreements too. The best time to end a dispute is now.
