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COMPULSORY ALTERNATIVE DISPUTE RESOLUTION – A PATH TOWARDS EFFICIENT JUSTICE?

COMPULSORY ALTERNATIVE DISPUTE RESOLUTION – A PATH TOWARDS EFFICIENT JUSTICE?

On 12 July 2021 the UK Civil Justice Council, an advisory public body tasked with overseeing the modernisation of the judicial system, published a long-awaited report on Compulsory Alternative Dispute Resolution (ADR) in courts of England and Wales

On 12 July 2021 the UK Civil Justice Council, an advisory public body tasked with overseeing the modernisation of the judicial system, published a long-awaited report on Compulsory Alternative Dispute Resolution (ADR) in courts of England and Wales (available here https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report-1.pdf). The report was commissioned to look at key issues in relation to the topic, but it was ‘not made in the context of any specific proposals for the introduction or extension of compulsory ADR but in order to inform possible future reform and development in this area’.


The importance of (compulsory) ADR and why reports such as these might have influence beyond UK borders stems from both the long-standing access to justice issues and more acute challenges caused by the Covid-19 pandemic. English courts (and many others worldwide) struggled with increasing backlogs of civil and criminal cases even before the pandemic, and the lockdowns and disturbances of previous years have further exacerbated the problems.


Introduction of ADR, primarily in the form of pre-trial mediation, is thus seen as one promising way of resolving disputes before they hit the court system whilst also relieving the pressure of existing cases. Making ADR compulsory in a large number of situations can multiply this effect and potentially lead to considerable gains when it comes to access to justice. However, caution is advised as well - mediation is traditionally viewed as a voluntary process where parties attend with a genuine desire to resolve their dispute. Compelling the parties to mediate could be a waste of time and resources, and even create resentment concerning the future use of ADR.


The report primarily aimed to answer two questions – 1) can the parties be lawfully compelled to participate in ADR, bearing in mind existing law and obligations under Article 6 ECHR? 2) when, if legal, is compulsory ADR desirable in terms of being efficient and effective?
The first question is answered in the affirmative, opening the door towards compulsory ADR. As stated in the report, with some safeguards taken into account, a procedural rule which requires parties to attempt ADR at a certain point or points, and/or empowers the court to make an order to that effect, is compatible with Article 6 ECHR.


When it comes to desirability, the report first notes that some ADR processes are already part of the civil justice system in England and Wales (such as in family law), and are considered successful. Building upon this, the report listed the factors to be considered when contemplating introducing or ordering compulsory ADR:


• the cost and time burden on the parties;
• whether the process is particularly suitable in certain specialist areas of civil justice;
• the importance of confidence in the ADR provider (and the role of regulation where the
 provider is private);
• whether the parties engaged in the ADR need access to legal advice and whether they have it;
• the stage(s) of proceedings at which ADR may be required; and
• whether the terms of the obligation to participate are sufficiently clear to the parties to
 encourage compliance and permit enforcement.


In conclusion, the report states that ‘introducing further compulsory elements of ADR will be both legal and potentially an extremely positive development.’


It is interesting to see whether the report will induce wider use of mandated, compulsory ADR in the UK and elsewhere. Whilst there are reasons to be cautious, as mediation and other ADR methods are not panaceas, a well-functioning civil justice system should offer a choice of dispute resolution methods accessible to all. The aim to integrate mediation into the justice system as a proper and equal dispute resolution mechanism, and not just as ‘the alternative’ is welcome from the viewpoint of costs and resources. In many ways, it seems to be the post-pandemic path towards more efficient justice.

 

Velimir Zivkovic
 

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