The Civil Justice Council (“CJC”) is an Advisory Public Body which has the responsibility of modernising the civil justice system. On 12 July 2021, the CJC published a report ‘Compulsory ADR (June 2021)’, which concluded that compulsory alternative dispute resolution (“ADR”) is lawful and should be encouraged.
ADR is a widely used term which covers a range of methods that can be used by parties to resolve disputes out of court. ADR is encouraged by courts as it often saves time and avoids the significant costs that can be associated with taking proceedings to trial.
The CJC’s report has now confirmed that, in certain circumstances, a court order making ADR compulsory is lawful and compatible with Article 6 of the European Convention on Human Rights which addresses the right to a fair trial.
The report focused on two main questions:
1. Can the parties to a civil dispute be compelled to participate in an ADR process? (the ‘legality’ question); and
2. If the answer is yes, how, in what circumstances, in what kind of case and at what stage should such a requirement be imposed? (the ‘desirability’ question).
With regards the legality question; the report concluded that any form of ADR that was not ‘disproportionately onerous’ would be compatible with Article 6 and lawful. Court ordered ADR would only breach Article 6 if it was disproportionality expensive or if it would take an excessively long time.
On the ‘desirability’ question; the CJC determined that courts should consider the cost and time burden ADR might have, together with whether the parties had access to professional legal advice when determining whether to make an order for ADR. When participation in ADR does not cost anything, it is very unlikely that its compulsory nature will be controversial. However, if there were associated costs, the situation would be different. The CJC considered that more work is needed to determine the types of claims and situations in which compulsory ADR would be appropriate.
Impact of the report
The CJC report will likely mean that an increasing number of claims will be subject to compulsory ADR orders. Sir Geoffrey Vos, Master of the Rolls and Chair of the CJC and Head of Civil Justice said:
“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.”
If you have any queries or concerns about the ADR process, please contact a member of our Commercial Dispute Resolution team.
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