Alternative Dispute Resolution is henceforth to be called Negotiated Dispute Resolution (‘NDR’). This change in nomenclature, introduced in the 11th Edition of the Commercial Court Guide, reflects the drive to place dispute resolution at the heart of the litigation process. The message is clear: engaging in dispute resolution should be a standard part of the litigation process.
It has been 20 years since the Court of Appeal’s decision in Dunnett v Railtrack Plc established that successful parties who have failed to engage in dispute resolution risk being penalised in costs. Since then, case law has gone on to emphasise the exceptional circumstances that must exist for some form of costs penalty not to be imposed in the event of a failure to mediate or otherwise engage in dispute resolution.
Despite the risk of costs penalties, parties can still be unwilling to submit to NDR. It appears that, for some, any such engagement will only happen if mandated. However, the Court of Appeal’s decision in Halsey v Milton Keynes General NHS Trust effectively quashed debate regarding the imposition of compulsory dispute resolution for several years. It was held in Halsey that the court did not have jurisdiction to compel parties to engage in alternative (as it then was) dispute resolution on the basis that such compulsion would be an unacceptable obstruction on the right of access to the court, in contravention of Article 6 of the European Convention on Human Rights (‘ECHR’).
Nine years later, in Wright v Wright, Lord Justice Ward queried whether forcing parties to go through an additional step before gaining access to court would in fact be an unacceptable obstruction but declined to answer the question. It took another eight years for the subject to be revisited.
Sir Geoffrey Vos, Master of the Rolls, has been a driving force behind recent developments. In March 2021, shortly after his appointment, he said: ‘In my new role as Head of Civil Justice, I intend to make sure that the provision of ADR is at the heart of all parts of the civil justice firmament.’ He went on to say: ‘Dispute resolution should be an integrated whole. Mediated interventions should be part and parcel of the process of resolving disputes … There is nothing alternative about either mediation, early neutral evaluation, or judge led resolution.’ In line with this stated intention, Sir Geoffrey promptly commissioned the Civil Justice Council (the ‘CJC’) to produce a report on the legality and desirability of compulsory dispute resolution. The report, published in July 2021, concluded that as long as there is no obligation on the parties to settle and they remain free to choose to continue their litigation, mandatory dispute resolution is compatible with Article 6 ECHR and is
The Future of NDR
The answer to that question is not yet clear.
As noted by Lady Justice Asplin, the Chair of the Judicial/ADR Liaison Committee, on the publication of the CJC’s report, ‘[m]ore 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…’.
That work is still very much in progress.
Following the publication of the CJC’s report, the Ministry of Justice (the ‘MoJ’) issued a Call for Evidence on Dispute Resolution in England and Wales, seeking views on, among other topics, compulsory dispute resolution. In April 2022, the MoJ published a summary of the responses received.
Unsurprisingly, given the variety of stakeholders who responded, views were extremely mixed. Some responses favoured systematic reform with exemptions where appropriate and hoped it would remove the unhelpful perception of weakness attached to using dispute resolution. Such support came, in particular, from consumers, public services, insurers and, of course, the Civil Mediation Council. Others were much more cautious, and concerned that compulsion would ‘undermine the fundamentally voluntary nature of the dispute resolution process’ and risk the process becoming a ‘tick-box’ exercise. The Law Society, while acknowledging the benefit of alternative, non-litigation, methods of resolving disputes, ‘urge[d] caution when it comes to making these compulsory’.
The MoJ made no definitive statement as to next steps, advising that instead that ‘[t]he information gathered … will inform the government’s developing work on how to utilise dispute resolution processes to deliver swifter, more cost-effective and more consensual access to justice.’
There is a great deal of momentum pushing the NDR agenda and we certainly expect to see continued developments in this area. It is indisputable that, used properly, non-litigation methods of dispute resolution can often be enormously effective. But it is equally clear that a one-size-fits-all approach would be hopelessly counterproductive. A nuanced approach is needed.