When writing in December, the rising cost of living, energy crisis, strikes and freezing weather were proving challenging. Not wanting the economic gloom to detract from the ADR community's 2022 achievements, this review highlights some positives.

  • ADR use is increasing: commercial cases worth approximately £17.5 billion are mediated annually (CEDR's Ninth Mediation Audit). London remains a preferred centre for arbitration: 28,639 civil disputes were resolved through arbitration, mediation and adjudication in 2021 (TheCityUK).
  • Since the CJC concluded that mandatory (A)DR is lawful and should be encouraged, (Compulsory ADR, July 2021), the MOJ and HMCTS proposed the introduction of free and compulsory mediation for claims up to £10,000 (see Increasing the use of mediation in the civil justice system) emphasising that reform must concentrate on "facilitating swift online access to the courts" and encouraging consensual DR "wherever possible".
  • Judicial support for ADR remains strong. For example, when to impose costs penalties for unreasonable refusal to mediate was considered: Richards v. Speechley Bircham clarified factors for courts to consider when exercising discretion on costs; and, in Epoq Legal v. DAS Legal Expenses Insurance Co Ltd, the defendant's "foot-dragging" and tactical use of late mediation was penalised.
  • The enforcement of cross-border commercial mediation agreements was considered following the Ministry of Justice consultation on whether the UK should sign the Singapore Mediation Convention (2018). Both the Civil Justice Council and The Law Society recommended the convention's implementation in UK domestic law.
  • The UK Law Commission has consulted on reform to the Arbitration Act 1996 to consolidate the UK's status as a global centre for international DR. The consultation closed on 15 December. Final recommendations are expected mid-2023.
  • The Scottish Arbitration Centre published its new arbitration rules which also encourage sustainability, diversity and better data protection and cybersecurity.
  • Campaigns to improve diversity in ADR intensified. The ICC updated its model letters to parties (and others) to promote diversity in arbitrator selection. More people signed the Equal Representation in Arbitration Pledge; the ICCA updated its Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings; and the International Institute for Conflict Prevention & Resolution promoted its 2022 Diversity Commitment.
  • The HMCTS' Reform Programme is progressing with aims including: proactive DR; ADR as a mainstream part of DR; and a single, online entry point for all disputes. The Online Procedure Rule Committee (OPRC) will create rules governing practice and procedure aimed at resolving disputes online quickly, efficiently and innovatively. Other new rules in this digital age, such as the UKJT Digital Dispute resolution rules (April), will help facilitate DR of technology-related disputes.
  • The revised TCC Guide, published in October, underlines the need for parties to consider ADR throughout the litigation process.
  • The judiciary also continues to support construction adjudication with its strict approach to enforcement. Not surprisingly, UK adjudication was found to be "robust and resilient" by the recent KCL/Adjudication Society study.

Greater challenges lie ahead, not least for those dealing with building safety responsibilities and implementing sustainable practices to achieve net zero. Dispute avoidance measures, including signing up to the Conflict Avoidance Pledge (as supported by the Construction Playbook) and good contract drafting (using clauses such as Chancery Lane Project's climate aligned clauses and NEC's X29), will help parties avoid/mitigate disputes. Where disputes do arise, ADR professionals are well equipped to support the business community with creative DR solutions as they navigate a bumpy 2023.

This article was first published by Construction Law Magazine on 6 February 2023 here.