The majority of disputes are actually settled via mediation and negotiation, which results in a settlement, rather than protracted court proceedings. Disputes settled in this way, known as Alternative Dispute Resolution (ADR), tend to be resolved more quickly and cost effectively.
It’s not appropriate in all cases though. In some circumstances the parties involved in a dispute are unwilling to engage in any form of ADR, usually because they believe agreement is impossible and the only way to resolve matters is to go to court and let a judge decide the outcome.
A change is on the horizon, however, this year we will see new rules introduced which enable the courts to order feuding parties to engage in ADR – effectively turning ‘alternative dispute resolution’ into mandatory or mainstream dispute resolution.
Dispute resolution solicitors are currently pondering two questions in relation to these changes:
- Can the parties to a civil dispute be compelled to participate in an ADR process?
- If the answer is yes, how, in what circumstances, in what kind of case and at what stage should such a requirement be imposed?
As Lord Dyson pointed out, to force unwilling parties to engage in mediation is to create an obstruction to their right of access to the court.
He added: “Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it. …If the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process. …if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it. …the court’s role is to encourage, not to compel.”
The scheme, in my opinion, will have to be designed in such a way as to help the parties achieve resolution quickly and cheaply.
There remain many unanswered questions though:
- Will this scheme be suitable for all areas of civil justice?
- Who will be providing the ADR scheme – a third party?
- What will the stages be and does this mean the main court action is automatically stayed until the ADR process is concluded?
- What will the sanctions be if a party fails to participate in the ADR process?
- Will the scheme work if one of the parties does not have legal representation?
- Will the scheme be one size fits all?
To my mind the only way it could work would be to offer defendants a form of ADR when they receive their pre-action protocol letter at the outset of the claim. There seems little merit in giving a second and third bite of the cherry.
We can personally see difficulties in making this scheme compulsory and significant risk of it creating more delays and more costs for clients.