The Civil Justice Council published a report last week (dated June 2021) concluding that ADR can be made compulsory for parties to a civil dispute, subject to a number of identified factors. The report found that compulsory ADR is legal (and in particular compatible with the right to a fair trial under Article 6 ECHR) and, in the right circumstances, desirable.

While no specific proposals have yet been tabled, the report is intended to inform possible future reform and one of its authors, Asplin LJ, said its conclusions “provide the opportunity to initiate a change of culture in relation to dispute resolution which will benefit all concerned”. We recognise the potential benefits (it may, for example, avoid a debate for purely tactical reasons about whether or not to mediate and address any concern that a proposal to mediate might be viewed as a sign of weakness) – but also that there may be downsides if, for example, the result is simply a ‘box-ticking’ exercise or opponents exploit compulsory ADR provisions simply to increase costs. Much will depend on the detail of any particular reforms put forward in due course.

Together with colleagues from our Lawyers’ Defence, Regulatory, Disciplinary and Investigations Team, I will be writing more on this and on ADR in the context of professional liability disputes after the Summer break.