Alternative dispute resolution (ADR) is on the rise. It is a major feature of the current civil justice reforms. It has been enthusiastically embraced and promoted by both policy makers and the senior judiciary as a means of saving the disputing parties the time, expense and anxiety of litigation, reducing the court backlog and increasing access to justice. For example, opt-out mediation forms part of the Online Civil Money Claims system, and the automatic referral of money disputes to mediation has very recently been introduced in the small claims track. Furthermore, the Court of Appeal in the landmark decision of Churchill v Merthyr Tydfill [2023] EWCA Civ 1416 confirmed that the courts could compel disputing parties to engage with ADR processes provided it did not undermine their right to proceed to a judicial hearing, and was proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
For ADR to be a truly integral part of the civil court process, however, judges in the civil courts should be more ‘ADR active’ by which I mean they should fully embrace and exercise their ADR powers, have a detailed understanding of the nature of the full range of ADR procedures, and they should engage in a constructive ‘ADR dialogue’ with the parties to ascertain the most appropriate ADR procedure for the dispute. The courts should also increasingly conduct ADR processes themselves rather than simply making ADR orders and leaving the parties to engage with private ADR service providers. This will ensure that judges develop the full range of skills and experiences to provide litigants with a dispute resolution service which encompasses both ADR and judicial determination. I explain each element below.
Judicial understanding of ADR procedures
In Churchill the Court of Appeal made clear that ADR orders or stay proceedings in favour of ADR should only be made where it does not impair the parties’ right to proceed to a judicial hearing, and it is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost. The type of ADR procedure that may be ordered will be a matter for the courts’ discretion and the characteristics of the particular ADR process will be relevant to the exercise of that discretion. It follows that the courts must have a detailed understanding of the nature and full range of both adjudicative (e.g. arbitration) ADR procedures, which would prevent the parties from reverting to the courts and therefore undermine their right to a fair trial, and non-adjudicative procedures (e.g. mediation, early neutral evaluation) which would not.
ADR dialogue
The courts should engage with the parties in an ‘ADR dialogue’ and explain the nature and importance of ADR, the parties’ ADR obligations, the role of the third party neutral, the consequences of not engaging with ADR, and, more significantly, the freedom of the parties to withdraw from the process (before a settlement is concluded) and to have their dispute heard by a judge. The process of informing and educating the parties of ADR should not simply be left to the parties, their lawyers and the appointed their party neutral, but should also include and be led by judges. The parties will be better informed of the nature of ADR which will, in turn, encourage a more constructive approach to ADR.
Embracing and exercising ADR powers
In clarifying that Halsey v Milton Keynes NHS Trust – in which the Court of Appeal stated that compelling parties to ADR would breach their rights to a fair trial - were obiter and, therefore, did not bind the courts, Churchill has liberated the courts from the constraining effects of Halsey and has provided the strongest impetus yet for the courts to make ADR orders in relevant cases. The courts must fully embrace, and be confident in exercising, their ADR powers to compel parties to engage with ADR.
Judicial involvement in ADR
The courts should refrain from simply making ADR orders for the parties to then engage the services of private ADR providers - they should increasingly conduct ADR processes themselves for which they have the necessary powers (e.g. CPR r.3.1(2)(m); Lomax v Lomax [2019] EWCA Civ 1467; Telecom Centre (UK) Ltd v Thomas Sanderson Ltd [2020] EWHC 368 (QB)). By doing so, judges will develop the necessary skills and experiences in providing the full range of dispute resolution processes which includes both ADR and judicial determination. In this regard, useful lessons can be taken from the practices in the Employment Tribunal where judges routinely conduct judicial mediation, judicial assessments and dispute resolution appointments. Furthermore, the civil courts in Australia, Canada and Singapore have a successful history of judicial mediation.
Masood Ahmed is an associate professor of law at the University of Leicester and a member of the Law Society’s Dispute Resolution Committee
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