Compulsory ADR is a controversial idea for many, including some lawyers and their clients. Clients may want to have their ‘day in Court’ and some view ADR as a sign of weakness. Whilst ADR is not currently compulsory, it is expected that parties will attempt to resolve disputes before they reach trial. They may face costs consequences if they unreasonably refuse to do so. Following the publication of a Compulsory ADR paper by the Civil Justice Council (CJC) in July 2021, however, there is now the prospect that ADR will be mandated in the future.

The current position

ADR can take many forms, mediation being perhaps the most well-known, although there are countless others ranging from without prejudice negotiations to expert determination, which is where the parties jointly instruct an expert to answer a specific question or issue.

The leading authority on the question of whether ADR can be compelled upon parties is Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 in which the Court of Appeal held that the Courts cannot compel parties to mediate against their will. This was held on the basis that doing so would amount to “an unacceptable obstruction on their right to access the Court” which is enshrined under Article 6 of the European Convention on Human Rights. The Courts can, however, impose costs consequences on a party that unreasonably refuses to attempt ADR.

The CJC paper

The paper (authored by Lady Justice Asplin, William Wood QC, Professor Andrew Higgins and Mr Justice Trower) notes that the position has moved on since Halsey with compulsory ADR now permitted in some European jurisdictions. It has also been forced upon parties in England and Wales in certain circumstances. For example, in Lomax v Lomax [2019] EWCA Civ 1467, the Court of Appeal held that the Courts have the power to order parties in appropriate cases to attend early neutral evaluation - a type of ADR under which an independent evaluator is appointed to provide a non-binding assessment of the merits of the case - even where one or more parties do not consent to that course.

Against this backdrop, the legal foundation for not imposing compulsory ADR as adopted in Halsey is less clear. The paper concludes that the introduction of elements of compulsory ADR would be lawful, and that a challenge to the principle laid down in Halsey should succeed.

The paper does not attempt to set out a concrete road map for introducing compulsory ADR, however. It is conceivable that one or more of legislation, changes to the Civil Procedure Rules and new case law will be required. Rather, the paper lists the factors that any future compulsory ADR regime should take into account including the need to ensure that the form of ADR compelled upon parties is not overly burdensome in terms of the time and costs input required. Consideration should also be given to whether the type of dispute is suited to potential resolution through ADR.

Commentary

The answer to these questions will often depend on the size, type and complexity of the particular dispute. The paper argues that ADR does not always need to be a burden on the parties’ resources. It offers the example of implementing an online process to prompt parties to communicate offers to the other side. Although this is an interesting proposal for smaller claims or litigants in person, it is unlikely to be a solution in larger disputes, where parties will inevitably want to set out at length in correspondence the rationale for advancing or rejecting offers.

It is clear that a one size fits all approach to compelling ADR will not work. Some cases are less suited to ADR, either because the parties are so far apart, or the relief sought is not suited to ADR (for example, because a party is seeking some kind of non-financial relief such as an injunction restraining the other party from doing something), to mention but two.

On the other hand, some claims particularly suited to ADR do not go down that route because under the current rules parties are not compelled to attempt ADR and may be reluctant to initiate ADR through fear of appearing to have a weak case, in what is an adversarial system. In such cases, compelling parties to attempt ADR is a sensible proposal which is likely to lead to more disputes being resolved with the result that significant time and costs incurred progressing cases through the Courts are avoided.