The Civil Procedure Rules Committee’s consultation on alternative dispute resolution (ADR) (the ADR consultation) following the court’s decision in Churchill v Merthyr Tydfil closed on 28 May 2024. The consultation sought views and comments on a limited number of proposed changes to the Civil Procedure Rules, in summary:
- To include reference to the use and promotion of ADR in the overriding objective as a necessary part of the just and proportionate running of a case;
- To specify that the court may order parties to participate in ADR;
- To include reference to courts needing to consider whether to order or encourage parties to engage in ADR; and
- To specify that a failure to comply with an order for ADR or failure to participate would constitute a conduct issue when considering orders about costs.
As a body established to reflect and represent the interests of London litigation solicitors, the London Solicitors Litigation Association (LSLA) often participates in consultations relating to issues affecting its members. The use (whether voluntarily or under compulsion) of ADR (of which the most common method is mediation) is one of those issues.
The government’s own guide to civil mediation makes it clear that mediation is 'entirely voluntary' and that the parties only have to attend a mediation if they want to. It is in light of this established understanding of mediation (and other forms of ADR) as voluntary processes that the LSLA’s response to the ADR consultation expressed concern about the proposed requirement that a case run in a just and proportionate way should include the use of ADR.
The LSLA recognises that in many cases ADR (and in particular mediation) can be an effective, proportionate and swift way of resolving disputes and entirely supports the promotion of ADR. However, there are cases which are not suitable for ADR and which require judicial intervention and the assistance of the court or tribunal in order to reach conclusion.
Even for those cases where ADR is suitable, not all ADR will suit. Even where mediation has a good prospect of enabling the parties to reach a mutually acceptable compromise, not all mediations are the same and not all mediators will be suitable. Sometimes parties can easily be persuaded to engage in the process, with both sides keen to preserve a business relationship: these are the parties who would have mediated in any event. Sometimes parties have become entrenched in their positions and need a third party to give them some home truths on the merits of their case, or some commercial input which they are either not getting from their legal team, or which they are choosing to ignore. Sometimes there is so little trust between the parties to the dispute that an independent third party is needed to ensure communication is effective, that messages don’t get distorted and that an agreement can be properly recorded without recourse to further disputes.
Then there are the cases which are simply not suitable for ADR, for example where a binding judgment is required on a point of law; where the parties are simply too far apart; or where there are other related issues being determined elsewhere, particularly in jurisdictions which do not recognise the protection we afford to without prejudice discussions.
The court already has the ability to sanction parties who unreasonably refuse to engage in ADR, and there is no harm in recording that in the CPR.
However, parties compelled to engage in a process which suits neither them nor their dispute are unlikely to properly engage. This is a sure-fire way to ensure that the process fails, with the result being wasted time and costs and ultimately the devaluing of the ADR process. Dealing with a case justly and proportionately will in many cases include the consideration and use of ADR, but specifying that a just and proportionate case as one which necessarily uses ADR goes too far.
Mary Young is partner at Kinglsey Napley and committee member of the London Solicitors Litigation Association (LSLA)
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