Will Alternative Dispute Resolution Become Compulsory?

In the latest blog from our Dispute Resolution team, we look at whether taking part in some form of alternative dispute resolution might become compulsory before court proceedings can be issued.

Alternative Dispute Resolution (ADR) has been around in a number of forms – the most common being mediation – for upwards of 30 years now. Designed to try to keep cases out of court, all parties in litigation are under an obligation to positively considered whether ADR might assist and, if they believe that it won’t, they can be required to explain to the court why they think that.

As things stand, while the obligation to consider ADR is mandatory, courts cannot force parties to do so if they choose not to. They do have the power to make costs orders against parties who they think have unreasonably refused to mediate, but there is no actual power to compel the parties to engage in some form of ADR.

The Civil Justice Council, headed by Court of Appeal judge Lady Justice Asplin, recently published a report in which it concluded that mandatory ADR is compatible with Article 6 of the European Human Rights Convention (which relates to the right to a fair trial) and is therefore lawful.

This followed a request from the most senior civil judge, the Master of the Rolls Sir Geoffrey Vos, to consider whether ADR could (and indeed should) be made compulsory amidst concerns that too few parties to disputes were agreeing to participate in it voluntarily.

Commenting on the report, the Master of Rolls 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 earlier resolution.”

The CJC report does expressly acknowledge that further 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, so it’s unlikely that anything will change in the near future. It also stops short of a positive recommendation that ADR should become compulsory.

However, the general direction of travel in thinking over the past few years has been towards greater use of online resolution of claims of modest value (such as those which currently fall into the small claims track, of £10,000 or less) and to keeping more cases out of court to free up judicial resources.

Against that backdrop, it seems likely that some form of compulsory ADR will be introduced in the medium term – but the devil will inevitably be in the detail of what types and value of claims it will apply to.

If you have any questions or find yourself having to deal with a dispute, please get in touch with the MLP Law Dispute Resolution team by email to markt@mlplaw.co.uk or 0161 926 9969 to see how we can help.