Alternative Dispute Resolution – will it become the norm?

In 2016 the Civil Justice Council (“CJC”) set up a group to look at ADR in the civil justice system. It produced its final report in November 2018.

What is ADR?

Alternative Dispute Resolution (“ADR”) has been around for many years but has become more prominent since the Woolf Reforms in 1999 which were designed to encourage settlement and avoid litigation where possible.

The Court already has a duty to encourage parties to use ADR procedures and the Halsey case[1]set out guidelines for imposing costs sanctions for refusing an offer to mediate. Despite ADR being encouraged by the courts, they have not succeeded in making it the norm.

ADR comes in a variety of shapes and sizes including mediation, round table meetings, judicial neutral evaluation, private neutral evaluation and online dispute resolution systems.

Although the use of ADR has increased in recent years, it remains “underused and too little known.”[2]

Report of the ADR Working Group

In 2016 the Civil Justice Council (“CJC”) set up a working group to look at the use of ADR in the civil justice system. It produced its final report in November 2018.

The working group stopped short of making ADR compulsory and also declined to recommend costs sanctions at interim stages for failure to participate in ADR. It did, however, make a number of recommendations aimed at increasing awareness, availability and use of ADR in civil cases.

Whilst not an exhaustive list, the recommendations include: 

  • steps to increase awareness of ADR in the public domain and amongst professionals/the judiciary through publicity and public education;
  • making ADR an essential part of any professional training and ensuring the disciplinary codes of the profession emphasize the duty to ensure clients understand the alternatives to litigation;
  • review of court forms, Pre Action Protocols and guidance documents to create a presumption that ADR will take place in cases which have not otherwise settled and that litigants have been fully informed about alternatives to litigation;
  • greater court intervention during the case management process to promote ADR;
  • the Halsey guidelines, which deal with costs sanctions for failure to mediate, to be reviewed and narrowed;
  • the power to apply costs sanctions on conclusion of a case for failure to participate in ADR (“the post mortem” sanction in Halsey) should be applied more vigorously;
  • the introduction of a notice to mediate system like that operated in British Columbia; the notice to mediate operates as a formal invitation by one party to the other to mediate. Once the notice to mediate is issued, an approved mediator is automatically appointed by the Court;
  • the creation of an ADR Liaison Committee made up of judges, ADR professionals and other stakeholders to monitor and advise on the role of ADR going forward;
  • establishing a set of standards for online dispute resolution in all its forms with a view to it gaining legitimacy as another form of ADR.

Implications for solicitors and their clients

We can expect to see a real drive towards making ADR the norm and an increase in costs sanctions for those who refuse to participate in ADR unless there are very good reasons for such refusal.

The range of ADR options available to litigants may well increase along with awareness amongst the public at large/legal community about ADR in all its forms as a means of resolving disputes.

If you have any questions or would like to know more about this update, please contact Lindsay Staddon, Partner, on 0113 213 4068 or Lindsay.staddon@weightmans.com

[1] Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576

[2] Section 4.1 of the CJC ADR Working Group’s Final Report of November 2018

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