Will ADR become compulsory

In August 2021 the Master of the Rolls, Sir Geoffrey Vos, gave his views on the Civil Justice Council’s report on compulsory alternative dispute resolution.

The report found that compulsory alternative dispute resolution is lawful, albeit that "more work is necessary in order to determine the types of claim and the situations in which compulsory ADR would be appropriate and most effective for all concerned."

Sir Geoffrey's view is that "ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution." This represents a marked change in judicial approach from ten years ago when Lord Justice Dyson expressed concerns not only about the legality of compulsory ADR, but of its desirability.

Hot on the heels of the Civil Justice Council's report, the government has today launched an eight week call for evidence seeking input on the best ways to settle disputes. In the call for evidence, you can very clearly read the echoes of Sir Geoffrey's earlier comments and the focus on ADR as a tool for resolving cases without trial, but doing so sooner (with the related reduction in costs for the parties and pressure on Court listings):

"What have hitherto been regarded as “alternative” methods of dispute resolution need to be mainstreamed within online processes, and within the culture of the legal system, those who work within it, and the consumers and businesses it serves... As we recover from the impact of the pandemic, we want to make the justice system better able to resolve disputes in smarter ways, combining pre-claim portals and court processes with integrated mediated resolution interventions."

You can read the full call for evidence here.

There has been some criticism of the timing of the call for evidence, and in particular that four of the eight weeks are in August. In reality, however, most practitioners feel that this move towards compulsory ADR is little more than a small step on a trajectory that most have participated in (albeit incrementally) since Lord Woolf's reforms came into effect in 2000. The purpose of the call for evidence, therefore, seems less about whether or not compulsory ADR will become part of the judicial landscape, but more to do with how to ensure that it is implemented in such a way as to make it effective in resolving cases quickly and fairly.