Compulsory Alternative Dispute Resolution - What Will Be the Impact for Litigants?

Compulsory alternative dispute resolution (ADR) could soon become a reality for civil litigation, following a landmark report by the Civil Justice Council.

Forcing litigants to attempt ADR has been deemed lawful by the Civil Justice Council in a report published on 12 July 2021. This means that courts could require those seeking to bring a legal dispute before them to at least attempt to reach an out-of-court settlement through alternative means before their case can be heard.

Using ADR to resolve civil disputes can be faster, less costly and less stressful for litigants, so a shift towards compulsory ADR could potentially make litigation quicker and more cost-effective.

The Civil Justice Council was asked to look at whether compulsory ADR was compatible with Article 6 of the European Human Rights Convention (and therefore could lawfully be introduced) in January 2021.

Chair of the Judicial/ADR Liaison Committee, Lady Justice Asplin, said: “We have concluded that (A)DR can be made compulsory, subject to a number of factors. More work is necessary in order to determine the types of claim and the situations in which compulsory (A)DR would be appropriate and most effective for all concerned, both in the present system and in relation to online justice.”

Chair of the Civil Justice Council and Head of Civil Justice, Sir Geoffrey Vos, said: “As I have said before, ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.”

While compulsory alternative dispute resolution is not yet a reality for civil litigation, the conclusion that it would be lawful does open the way for it to be introduced in the future. While there are benefits to ADR, it is not always appropriate, and there are questions over whether forcing litigants down this route is in their favour.

Would compulsory ADR be good for litigants?

As stated above, ADR can help litigants get a resolution to a dispute faster and at a lower expense. It can also help to avoid escalation of conflict between the parties, keeping things less stressful.

Other advantages of ADR include allowing you to keep control of the decision over how your dispute is resolved and keeping the nature of your dispute and the outcome private, as opposed to court proceedings which are held in public.

That said, forcing people to take part in ADR could potentially be counterproductive. The process heavily relies on the parties being willing to work together to agree on a resolution to their dispute. If one or both parties are only there because they have been forced to participate, it makes it less likely that they will be able to work together constructively.

It should also be noted that, in many cases, litigants are already under pressure to attempt ADR before taking a matter to court. This is because, if a litigant unreasonably refuses to attempt an out-of-court settlement, they could potentially face having a costs order made against them by the court, even if they win their case. This would mean that they would have to cover some or all of the other party’s legal costs and can act as a strong incentive to engage in ADR where appropriate.

How does alternative dispute resolution work for civil litigation?

The most commonly used form of alternative dispute resolution for civil litigation is mediation, also sometimes called ‘civil mediation’.

In civil mediation, the parties to a dispute meet with a trained mediator who acts as a neutral third party to help them work towards an amicable settlement. The mediator is not there to tell the parties what settlement they should reach or to advise them on what is fair, but they can provide clarity over any points of law that may be relevant.

In civil mediation, the parties can have their own legal representatives in attendance to advise them. This is different to family mediation (commonly used for divorce), where you are not allowed to have a representative with you.

Civil mediation is usually concluded in one day and can take place online if required. Any agreement you reach will not be legally binding but can be made so through an application to a court.

Other alternative dispute resolution methods that can be used for civil litigation include arbitration, where a trained arbitrator makes a decision on the case for you, but this is only rarely used for civil matters.

Get expert litigation support for alternative dispute resolution or court proceedings

At Atkins Hope, our experienced civil litigation and dispute resolution solicitors offer robust and effective support for even the most complex matters.

We are able to represent clients for various methods of alternative dispute resolution, including mediation, as well as managing cases dealt with through the courts. We can advise you on your options and help you to choose the right litigation route for your circumstances.

For expert help with civil litigation and dispute resolution, please get in touch with our specialists in Croydon, Medway, Blackheath or Guildford.