Compulsory ADR?

27 August 2021

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Alternative Dispute Resolution (ADR) has become a key part of solving litigious disputes outside the Court Room. The process of ADR is becoming increasingly encouraged by the Courts as a way to streamline litigation and save precious time and money for all involved. Nonetheless, in Northern Ireland, ADR still remains an alternative to the litigation process rather than a compulsory part of it.

Previous case law has prohibited the compulsory attendance at ADR, meaning it can often be easily bypassed. However, following a recent report from the Civil Justice Council, the current use of ADR in the litigation process is likely to undergo a drastic revamp. In England, compulsory ADR is now viewed as a legal and desirable method of resolving litigious disputes.

The Civil Justice Council (CJC) is a public funded Advisory Body tasked with reviewing and modernising the Civil Justice System. On the 12 July 2021 they released a report considering the lawfulness of compulsory ADR and its compliance with the European Convention of Human Rights (ECHR).

Up until this point, the main authority governing compulsory ADR was the case of Halsey v Milton Keynes [2004]. In his judgment, Dyson LJ considered the two main questions when it comes to the use of compulsory ADR:

  1. The legality question – whether or not compelling parties to participate in ADR was compliant with Article 6 of the ECHR.
  2. The Desirability Question – whether it was desirable to compel said parties.

Dyson LJ concluded that the answer to both the above questions was resoundingly no. He felt it both a breach of the ECHR and also undesirable to compel parties to ADR especially when neither agreed.

In their report, the CJC reconsidered the above questions and concluded that in certain circumstances it is perfectly legal for the Courts to compel parties to enter into compulsory ADR.

The Legibility Question

Not too dissimilar to Dyson LJ’s judgment, the CJC focused on two main questions, with the first being the legality question. They considered whether or not the action to compel attendance at ADR is compliant with Article 6 of the ECHR and therefore legal. On this front, the report concluded that subject to certain caveats, compulsory ADR would be ECHR compliant and as a result, legal. As mentioned, the report caveated this by saying such ADR would only be ECHR compliant so long as it was not disproportionately expensive or time consuming. The report felt it important that no such Court ordered ADR would add a further excessive burden on a litigant in an already time-consuming and costly process.

The Desirability Question

Secondly, the report considered the question that where such ADR was legal, would it be desirable to compel parties to attend. The CJC reiterated the point that if Court ordered ADR was to become both legal and desirable it must not have the intention of adding an extra onerous burden on the parties involved. As a result, the report outlined that before ordering ADR the Courts should consider the impact that such a process would have on each party in terms of costs, time, access to legal advice and other relevant factors. If the ordering of ADR is likely to hinder an individual’s access to a resolution or add excessive time-delays then it is unlikely that such an approach would be desirable. On the other hand, where ADR is unlikely to have any major cost or time repercussions then such a process should be considered both legal and desirable.

Going Forward

The report published by the CJC is likely to signal significant changes for the future of the litigation process in England. The report’s findings mean compulsory ADR can now be viewed as both a legal and desirable method of resolving litigious disputes in England. The expanding nature and use of ADR will likely see it evolve from a litigation alternative to a key part of the litigation process. For those involved in litigation, this can be seen as a welcomed development. This has the possibility to lead to a more streamlined litigation process which will often save time and money for all involved. So long as the right to come before a Court remains when all else fails, it is fair to say that this can only be good news. It will be interesting to see whether the Courts of Northern Ireland take a similar approach.

If you would like any further information or advice, please do not hesitate to get in touch with our Litigation and Dispute Resolution team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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