Compulsory ADR: Is it the future of litigation?

In January 2021, the Master of the Rolls asked the Civil Justice Council (“CJC”) to report on the legality and desirability of compulsory ADR (Alternative Dispute Resolution).  Sir Geoffrey Vos had previously said that “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”.”

ADR is any dispute resolution technique whereby the parties are assisted in exploring a settlement whether that is through a mediator in person, online, or by phone (for example under the Small Claims Mediation scheme).  Either party can pull-out of the adjudicative process at any time and there is no compulsion on a party to settle the dispute.  The different ADR processes vary as to the costs and the time involved for the parties in addition to the remedies they provide.

Summary

The report on Compulsory ADR (the “Report”) concludes, in short, that parties can lawfully be compelled to participate in ADR and that it is compatible with Article 6 of the European Convention on Human Rights to have a procedural rule requiring parties to attempt ADR subject to various factors.  Consideration needs to be had as to when in the proceedings the parties should be compelled to engage in ADR and this is likely to vary case to case.

Questions the CJC considered in their Report

The Council considered the following two questions in the Report by way of discussion and reference to case law and comments of Judges. 

1. Can parties to a dispute be compelled to participate in ADR? (the “legality” question); and

2. If yes, how and in what circumstances and in what kind of case and at what stage should such a requirement be imposed? (the “desirability” question).

Compulsion to participate in ADR

The Council considered that compulsion to participate in ADR is not restricted to the exercise of a case management power by a judge. It could also be achieved by stipulating that participation in ADR is a requirement once proceedings are commenced.

The compulsion to participate was addressed in the case of Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002.  In this case, the Court stated that to compel mediation would “be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6.” ¹

However, in McParland v Whitehead [2020] Bus LR 699 Sir Geoffrey Vos gave mention of the possibility that the court could make an order for compulsory mediation.

There are already some procedural rules that dictate a compulsion to engage in ADR.

For example, in family cases, Financial Dispute Resolution appointments (a without prejudice meeting before a District Judge) are a compulsory part of the procedure for a financial remedy under Part 9 of the Family Procedure Rules and both parties must attend.  In addition, some county court hearing centres have established a process of compulsory conciliation led by a District Judge.  The parties are obliged to attend a Dispute Resolution Hearing to seek to resolve their disputes and if they do not attend, they risk having their claims struck out.

The CJC discussed the distinction between an order compelling a party to engage in ADR and an order which requires the parties to attempt ADR under the threat of costs sanctions; the latter was deemed to be permissible.

However, the conclusion the CJC came to was that “any form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 rights.  If there is no obligation on the parties to settle and they remain free to choose between settlement and continuing the litigation, then there is not…”an unacceptable constraint” on the right of access to the court”.²

What stage of proceedings should parties be required to attempt ADR?

The CJC considered that engaging in ADR could be a pre-condition to issuing a claim or a compulsory part of the early stages of the procedure promoting a swift and cost-efficient resolution of the dispute.   They said that it may be that in complex cases, ADR can only sensibly take place later, at least after disclosure has taken place or even the exchange of witness statements.  Clearly the type of case has a significant bearing on the stage at which any ADR is likely to be beneficial or successful.  Sir Geoffrey Vos commented that in some cases it might be appropriate to direct parties towards ADR more than once in the same set of proceedings.

Conclusion of the Council

Three specific observations were made by the CJC and they were as follows:

1. Where participation in a suitable and effective form of ADR occasions no expense of time or money by the parties, it is very unlikely that the compulsory nature of the system will be controversial.

2. They foresee a greater use of compulsory judge-led ADR processes (such as Dispute Resolution Hearings) which are free and are already highly effective where currently used.

3. Once mediation becomes better regulated and more familiar and is available in affordable formats compulsory mediation should be considered.

The Report does not offer any suggestion or proposal of timings as to when any changes might come into place and it is not clear how such changes would be incorporated into the dispute resolution process as a whole.  We will provide regular updates as and when there is progress in this respect.

1 https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf paragraph 23

2 https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf paragraph 58

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