Fix the courts instead of pushing ADR

‘Disputes should be kept away from the courts and resolved using better, quicker and more efficient ways,’ the justice minister Lord Faulks declared last week. He was repeating the government’s policy of steering people towards alternatives like ‘mediation, arbitration and conciliation’ instead of the old-fashioned courtroom.

There is definitely a time and a place for all those alternative dispute resolution methods above. Absolutely.

But I for one am getting pretty tired of hearing government constantly try to push alternatives, instead of grasping the nettle and actually improving the court system itself.

Why are these ADR methods quicker than the courts? Because we are not employing enough judges, and there are nowhere near enough court staff.

Why are these techniques cheaper? Because the government is racking up court fees, for a start.

Lawyers are tearing their hair out over the state of the courts system. Time and again I hear the same complaints – it is impossible to get through to the court on the telephone, the fax machines are not filled up with paper, you can’t send emails over a certain size or they just bounce straight back.

How about sorting this mess out, rather than turning a blind eye to it and pointing court users in another direction?

True, the government did recently announce that it was to spend up to £75m a year for the next five years on modernising courts IT. I welcome that, of course – but with the same feeling of caution as most members of the profession, given government’s track record on IT projects. Indeed, the Gazette has already reported slippage in the timetable for Wi-Fi in courts.

It is easy to think that these ADR techniques are some sort of panacea, enabling people to walk neatly round all the problems in the mainstream justice system. But they are not. Mediation is essentially founded on compromise.

But compromise isn’t always appropriate – sometimes one party really is entirely in the right, and they need their day in court to have their position vindicated, and their costs paid by their opponent.

And let’s not forget the small matter of the law itself. How is case law supposed to evolve and develop if everyone is using ADR, with the outcome of their disputes unpublished, and unbinding on others in any event?

I don’t deny that ADR methods will be the best way forward for very many cases. But parties must still have the right to choose the courts instead. And for that, the courts must be a viable option.

Rather than using ADR as an excuse to avoid addressing the problems in the court system, government needs to start looking at what it can do to make the courts just as efficient as these alternative methods. And that won’t just mean more computers, it will mean more people as well.

Let’s hope it will spend the £75m a year wisely.

Rachel Rothwell is editor of Litigation Funding magazine