Compulsory ADR: What's it all about?

In last month’s article, I considered the outstanding final reports (FRs) and, perhaps too ambitiously, set myself the aim of explaining the way forward for the Master of the Rolls (MR) and the civil courts in terms of the future development of civil justice in England and Wales. 

In January 2021, during the Master of the Rolls’ interview with the the president of the Law Society David Greene, Sir Geoffrey Vos said compulsory ADR was an issue he would ask the Civil Justice Council (CJC) to consider.

Anyone who has paid any attention to the work of the CJC during the past five or six years will recall the plethora of consultations concerned with the role of ADR in the civil courts. Last month’s article has the full list, including the most recent. This was a pre-consultation survey about pre-action protocols (PAPs), which included questions such as ‘should ADR be quasi-compulsory?’ (covered in the 2017 consultation about ADR) and whether the PAPs could be managed online.  

Covering the same ground is, of course, no reason not to do so. The PAPs have been reviewed before: first in 2005, then again in 2012. 

The singular and increasingly embarrassing absence from the recommendations of the outstanding FRs is any reference to the use of online platforms to manage the ADR process.

In 2021 online solutions must be part and parcel of any solution going forward, having made, of course, allowance for the digitally detached.

The ‘compulsion question’ has been niggling away for a long time and is, if you like, the ‘big niggle’ of civil justice. The question is a highly nuanced issue which should not be taken forward in the absence of a review of past submissions. 

What has been called for previously is a pluralistic response –­­­ something other than a one-size-fits-all ADR. The truth is that, in civil justice, there has been a diverse ADR response for some years.  Take these examples: the role of adjudication in commercial construction contracts; the mediation step which must precede  appeals to the tribunal in cases concerning special educational needs and disability (SEND) and the mandatory pre-application mediation information and assessment meetings (MIAMs) in family cases concerned with children and finances. There are other examples, too.

The difference now is that the ‘big niggle’, and all those outstanding FRs, concern the introduction of much more ADR with far greater integration into the court process, but especially concerning claims that, by case numbers, are a far bigger part of the civil justice system.

The outstanding FRs all recommend much more ADR. Each FR suggests a different approach to ADR - for example, within recommendations about low value clinical negligence claims, there is a proposal for the use of neutral evaluation.

Any fear that ADR might be introduced as a one-size-fits-all reform is misplaced because we already have a diverse range of ADR responses.

The biggest hurdle is culture change. Culture change was something that the Master of the Rolls called for at the end of his speech at the Law Society. Judges, policy makers, lawyers, citizens and businesses will need to move away from a conflict-driven mindset and embrace a collaborative approach. This is easier in some countries than others. In Finland, for example, the collaborative model of conflict resolution is taught from kindergarten.

On 26 March 2021, the School of Law at Hull University hosted a speech by Sir Geoffrey Vos entitled ‘The future relationship between formal and informal justice: integrating Courts and ADR mechanisms’. 

In next month’s edition, I will examine the speech and the prospects of meaningful integration being achieved.

Tony N Guise is the director of DisputesEfiling.com. He is also past president of the London Solicitors Litigation Association disputesefiling.com