The Civil Justice Council’s report on compulsory alternative dispute resolution (ADR) was published in July 2021 and concluded that mandatory ADR is compatible with Article 6 of the European Human Rights Convention and is therefore lawful.
The report sets out that ADR could be made compulsory and could be an appropriate and effective way of settling many disputes. Currently the costs risk associated with a refusal to mediate is the primary encouragement for reluctant parties. This report highlights the need for ADR to be seen as part of the dispute resolution process and not an exercise done halfheartedly to avoid a costs order.
We should look to the United States where mediation is widely relied upon to ease the burden on the courts and can provide a more cost-effective way of resolving disputes. The cost-saving aspects are even more significant in the US as the costs of litigation are not generally recoverable by the successful party as they can be in the UK. We should also look to Italy where there is an automatic and compulsory referral to ADR as a pre-requisite to commencing proceedings. In Australia there are court-referred mediation schemes were the courts have wide discretionary powers to order mediation without the parties’ consent.
In anticipation of compulsory ADR, now is perhaps a good time for lawyers to start working with mediators on a regular basis to help empower our clients to assess the most appropriate form and the right time to partake in ADR.
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 earlier resolution.