Compulsory ADR is lawful and should be encouraged, Civil Justice Council report finds

Mandatory alternative dispute resolution (ADR) is lawful and should be encouraged, a report published today (12 July 2021) by the Civil Justice Council has concluded.

The report, named Compulsory ADR, found that ADR is compatible with Article 6 of the European Human Rights Convention and is, therefore, lawful.

Lady Justice Asplin DBE, William Wood QC, Professor Andrew Higgins and Mr Justice Trower authored the report. In a concluding statement, they said the practice would be "potentially an extremely positive development".

As part of the report, the group laid out a set of principles relevant to the use of compulsion. -They made three specific observations:

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"1. Where participation in ADR occasions no expense of time or money by the parties (as with answering questions in an online process as to a party's willingness to compromise) it is very unlikely that the compulsory nature of the system will be controversial – as long as the ADR is otherwise useful and potentially productive.
"2. Judicial involvement in ENE, FDR and DRH hearings is proving highly effective and these are of course available free to the parties. Again as long as they seem appropriate for the particular type of case being considered and can be resourced within the court system, we cannot see that compulsion in an even wider range of cases will be unacceptable.
"3. We think that as mediation becomes better regulated, more familiar and continues to be made available in shorter, cheaper formats we see no reason for compulsion not to be considered in this context also. The free or low-cost introductory stage seems the least likely to be controversial. Above all, as long as all of these techniques leave the parties free to return to the court if they wish to seek adjudicative justice (as at present they do) then we think that the greater use of compulsion is justified and should be considered."

Chair of the Judicial/ADR Liaison Committee and lead Judge for ADR, Lady Justice Asplin, said the report "addresses questions which are central to the shape and design of dispute resolution in the twenty-first century.”

She added: "We have concluded that (A)DR 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 (A)DR 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, the Master of the Rolls, Sir Geoffrey Vos, chair of the Civil Justice Council and Head of Civil Justice, said: "I am grateful to Lady Justice Asplin and the working group for this excellent report. They conclude that it is possible, where a court process remains available, lawfully to mandate (alternative) dispute resolution.

"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.”

Sir Geoffrey added: "Meanwhile, it is exciting to see the HMCTS reform project delivering online justice. All kinds of dispute resolution interventions will be embedded within that online process.”

The CJC is an Advisory Public Body which was established under the Civil Procedure Act 1997 with responsibility for overseeing and co-ordinating the modernisation of the civil justice system. It provides advice to the Lord Chancellor, the Judiciary and Civil Procedure Rule Committee on the effectiveness of aspects of the civil justice system, and makes recommendations to test, review or conduct research into specific areas.

The full report can be read here: https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf

Adam Carey

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