A combination of unusual events – Brexit, COVID-19 and the ensuing economic downturn – have set the scene for a potentially radical change in approach to dispute resolution (DR). Is ADR’s big moment here? 25 years since Lord Woolf proposed Pre-Action Protocols (PAP) to facilitate early settlement and make litigation a last resort, it’s about time.

Disputes are bad for business and, early in the pandemic, the government urged disputing parties to collaborate rather than litigate. Undoubtedly, ADR could help reduce the backlog of cases caused by lockdown’s court closures. Yet ADR is still new-fangled to many accessing DR services for the first time. Ignorance, scepticism and fear of showing weakness often militate against engagement.

The Civil Justice Council (CJC) considered the need for more government support, education on and access to ADR in its Civil Justice ADR report (2018) (judiciary.uk). Sir Geoffrey Vos later opined that ADR should be an integral part of the DR process and no longer an alternative to litigation.

Significantly, the CJC’s latest report, Compulsory ADR (June 2021) (judiciary.uk), concluded that parties could lawfully be compelled to participate in ADR and proposed conditions for when compulsion could be a desirable and effective development. The process should not be a disproportionate burden on parties’ time or resources. Parties must have confidence in ADR providers (systematic regulation), access to affordable formats and legal advice, and be free to return to court for adjudicative justice.

The court’s case management powers could include power to order ADR similarly to other procedural steps, such as disclosure. Breach of such an order could be sanctioned. Retaining the fundamental constitutional right to court access is crucial. There should be no compulsion to settle: orders to [mediate] should be distinguished from orders to attempt to [mediate].

How this would work needs further consideration, particularly as to when to order compulsory mediation and how to keep the costs down while still attracting experienced professionals to act as mediators. These issues will be addressed as part of the MOJ call for evidence (consult.justice.gov.uk/) on DR in England and Wales that requests views from those involved in DR. This feedback will help progress the debate closer to reform.

The consultation aims “to mainstream non-adversarial [DR] mechanisms, so that resolving disagreements, proactively and constructively, becomes the norm”. It recognises that more still needs to be done to increase ADR uptake and that, to maximise resources and reduce stress levels, a range of routes to resolution will be needed. It aims for accessible support at the right time to achieve timely DR without court-based litigation – while recognising that the court option must remain.

This shift in approach could embed collaboration in the CPR (beyond PAPs), encourage disputants to engage meaningfully (at the right time), reduce costs, save management time and commercial reputations, and reserve court resources for those cases needing judicial attention.

In the meantime, the government’s drive to disseminate information about ADR has already started: see the recently published guide to civil mediation (gov.uk) that explains civil mediation’s benefits to those with little DR experience and few/no funds. Businesses need both the “credible threat of litigation” and “a well-functioning civil justice” system that offers “a choice of [DR] methods” (Dame Hazel Genn). Help set ADR’s course into the mainstream. Share your “frontline insights” and “tangible examples” at consult.justice.gov.uk before 31 October 2021.

This article was first published by Construction Law on 1 October 2021.