A recent report has concluded that Alternative Dispute Resolution (ADR) has not yet become an integral part of the civil justice system in England and Wales.

In its 98 page report[1], the Civil Justice Council ADR Working Group outlines the existing role and potential future role of ADR. It does not provide “magic solutions” but seeks to open up a debate with a series of interim recommendations and questions.

Currently, the court rules and pre-action protocols contain a number of prompts and signposts, encouraging parties to make use of ADR to avoid court proceedings. However, any sanctions only take effect at the end of the case, when costs liability is decided and costs are assessed. The courts have held that there can be cost consequences for a party who unreasonably refuses an offer to mediate a dispute or even fails to respond to an offer of mediation. This can mean not recovering all of the costs, despite being successful.

The report notes that although these attempts are “well crafted and well thought out”, they are not working.

Should ADR be made compulsory?

The majority view is that compulsion may be too heavy-handed. But it is noteworthy that a minority of the working group consider that the current requirements should go further. They would like to see the introduction of ADR as a condition of access to the court in the first place, or at the very least as a condition to progress beyond its interim stages.

The report suggests that the courts should promote the use of ADR more actively at and around the allocation and directions stage. This is often the first time a judge considers the dispute and makes case management directions about the future conduct of the case. The working group suggests that the court should be more interventionist and judges should be able to mark disapproval at a much earlier stage of the case with costs sanctions.

With comparisons made to the approach in other countries and a recognition that the introduction of Online Dispute Resolution is a “game-changer” the report raises a number of important issues. A final report will be published after the consultation closes on 15 December 2017. It will then be for the Government to decide what steps to take.

For those considering ways of trying to resolve disputes without court proceedings, there are number of options available.

Frequently direct settlement discussions can be effective. In other cases, you may require the assistance of an independent third party to help with facilitating a settlement (mediation). In more complex cases, it may help to obtain an independent and impartial evaluation of the merits of each party’s case (early neutral evaluation).

There are clear benefits in using ADR methods. The ADR discussion is now firmly back on the agenda.