Alternative Dispute Resolution

Mandatory ADR - A green light for efficient conflict resolution?

Introduction

Post-pandemic, the court system remains crushed under the heavy weight of backlogs and bureaucratic administration, frustrating all those involved.

Consequently, alternative dispute resolution (ADR) has gained significant recognition as a practical means of resolving disputes outside formal court proceedings.

As the Master of the Rolls, Sir Geoffrey Vos, commented in the Civil Justice Paper in 2021, ADR should no longer be viewed as an alternative, but as an integral part of the dispute resolution process – with emphasis placed on the resolution rather than the dispute.

Mandatory ADR is slowly being incorporated into the legal system in England and Wales, where the courts have the power, in some areas of law, to order parties to engage in ADR procedures to try and resolve their dispute before issuing court proceedings. Failure to do so may result in the court penalising the parties regarding awards of costs.

Procedures include negotiation, mediation, and arbitration, and are supported by the Civil Procedure Rules, which govern the conduct of litigation in England and Wales.

Benefits of ADR

Implementing mandatory ADR will boost access to justice and ease the burden on the courts by diverting cases from litigation and promoting efficient dispute resolution outside the judicial process.

As the parties are encouraged to communicate and negotiate directly, this will lead to a quicker resolution to a dispute, rather than the lengthy and costly formal litigation court process. Therefore, the available ADR processes are more efficient, lower costs, and save time, money, stress, and resources by encouraging the parties to seek alternative solutions before entering the courtroom.

Additionally, ADR can preserve existing business relationships, maintain goodwill, and encourage amicable solutions as it fosters a collaborative environment in contrast to adversarial court proceedings.

Other considerations

While mandatory ADR requires the parties to try and settle their dispute before resorting to litigation, there remains an element of voluntary participation, and it does not compel them to settle. If either party remains dissatisfied, they can still opt for litigation.

Not all disputes are suitable for mandatory ADR, for example, disputes requiring urgency, public interest, or complex legal questions. The court's discretion allows for exceptions to the general rule, ensuring that the most appropriate resolution method is applied in each case.

Like any growing industry, providing qualified mediators and arbitrators is critical to providing an effective service. It is crucial to have trained and skilled ADR practitioners to guide parties towards mutually agreeable outcomes.

Government action

The government has announced their intention to implement mandatory mediation in all contested claims under £10,000 in the county courts of England and Wales and take further steps in developing regulations to extend the requirement to mediate to all county courts eventually.

Further, the Ministry of Justice has announced proposals to make mediation mandatory in all suitable family cases.

In conclusion

Mandatory ADR significantly benefits all stakeholders in promoting efficiency, cost-effectiveness, relationship preservation, and less court congestion.

While the voluntary nature and exceptional case considerations ensure flexibility, embracing the importance of ADR processes, and seeking amicable settlements whenever possible, can only provide a satisfactory outcome for the parties in dispute.