2 August 2021
Disputes Quick Read – 45 of 87 Insights
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
The Civil Justice Council recently published its report on the issue of compulsory alternative dispute resolution (ADR) in civil proceedings, in which it concludes that mandatory ADR is to be "encouraged".
The report considers two key questions of legality and desirability in the context of Halsey v Milton Keys [2004] 1 WLR 3002 – a Court of Appeal decision which rejected the idea of mandatory ADR – and ultimately recommends a change to the dispute resolution status quo.
Can the parties lawfully be compelled to participate in an ADR process?
In the Halsey case, the answer was "no", on the basis that this would "impose an unacceptable obstruction on their right of access to the court".
The Civil Justice Council's report disagrees. It gives examples of areas where compulsory participation in ADR is already required by the civil procedure rules (eg some family and personal injury proceedings). It also finds that introducing compulsory ADR is compatible with Article 6 of the ECHR if there are appropriate safeguards.
Is it desirable to have forms of compulsory ADR?
In the Halsey case, the court again said "no", on the basis that it was not for the court to compel ADR, only to encourage it. Nevertheless, where there was reluctance to participate, the effectiveness of any process was questionable; achieving nothing except adding costs and delay to the process.
The report again disagrees, concluding that compulsory ADR could be desirable and effective for the right types of claim, provided the parties always have access to the adjudicative process. It is also supportive of judge-led ADR.
What's next?
The report is a starting point and more consultation is inevitable. It echoes views already expressed by Sir Geoffrey Vos that ADR should not considered an "alternative" but an integral part of the dispute resolution process.
Questions remain, however, including:
- What forms of ADR will be appropriate for what types of claims?
- Will a form of compulsory ADR place a disproportionate burden on time and resources of litigants?
- What measures will be put in place to deal with reluctant participants?
- Will it reduce or increase overall costs?
What is certain is that there is support for a change in how other forms of dispute resolution are viewed – and having "your day in court" may soon become a novelty.
Find out more
To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes & Investigations team.
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