Peter Vinden, chief executive of Gateley Vinden, discusses the Civil Justice Council’s report on compulsory alternative dispute resolution (ADR)
On 12 July 2021, the Civil Justice Council published its long-awaited report on compulsory alternative dispute resolution (ADR).
The following quote from Lady Justice Asplin, chair of the Judicial/ADR Liaison Committee and lead judge for ADR, 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.
Why is our judiciary viewing mandatory ADR as the way forward?
Has litigation become too expensive in the UK? Have our courts become congested with a backlog of cases and a quicker route to justice is sought? Or is there a recognition that parties sometimes need saving from themselves?
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 believes that some form of ADR is required to promote a prompt and economical resolution.
Mediation is one such form of ADR; 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.
How do mediators feel about dealing with cases where one or more parties have been compelled to participate?
It is going to be interesting to see if the compulsion element will engender a “box tick” approach to mediation. Will parties seize the opportunity to actively participate and achieve a resolution of their own making?
Having been in the mediation game for over 22 years, I can attest that it is quite common to encounter one or more parties who have agreed to mediate simply to avoid an adverse cost sanction from the court. The mediator’s job in such circumstances is to persuade the reluctant party that it is worth engaging on the basis that they are there anyway so they may as well give the mediation a chance.
It is also far from unusual to have one or more parties 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 such a blockage or, in my case, die trying!
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.
For more information, please get in touch.
Tel: +44 (0)7801 021000