Forced to Negotiate? – Thursfields Legal consider a new approach to Alternative Dispute Resolution (ADR)

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Simon Hocking

Simon Hocking, Senior Associate Solicitor, in Commercial Litigation at Thursfields Solicitors, looks at issues around Alternative Dispute Resolution (ADR).

‘If the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it.’

So said the eminent Judge Lord Dyson in a 2004 case before he was promoted to ‘Master of the Rolls’ and thereby became head of Civil Justice in this nation.

Indeed, although it’s always wise to consider whether a dispute can be resolved by agreement, it is received wisdom amongst every lawyer you care to speak with that ‘the court cannot compel parties to engage in ADR’, whether that is a telephone conversation between lawyers, swapping letters containing competing offers of settlement, a roundtable discussion, or a more formal mediation. It is seen as a principle of inherent correctness, an unimpeachable proposition that no-one could possibly question.

No-one, that is, until Sir Geoffrey Vos, who became ‘Master of the Rolls’ at the beginning of 2021. Seemingly unimpressed with the level of voluntary engagement in ADR generally and concerned with rising court demand against a backdrop of underwhelming funding, Sir Geoffrey tasked the Civil Justice Council to investigate whether forcing parties to the negotiation table was either (i) legal or (ii) desirable.

As the highly respected body which writes and amends the Court Rules which every party in civil proceedings must comply with, the Council’s opinions really matter and, last month, they published their report, appropriately entitled ‘Compulsory ADR’. In it, they made some significant findings which could significantly change the litigation landscape as we know it:

  • Firstly, certain forms of compulsory ADR are, after all, legal. Specifically: ‘appropriate forms of compulsory ADR, where a return to the normal adjudicative process is always available’
  • Secondly, in certain circumstances, making it compulsory for parties to participate in ADR could be not only desirable but ‘an extremely positive development’.

Notably, the report does not make any firm or specific proposals on how or in what circumstances ADR could be made compulsory. On the contrary, it makes clear that, before such reforms are implemented, further effort will be required to determine where they would be appropriate.  Nonetheless, in its conclusion, the report draws attention to 3 observations which may guide the development of relevant procedures:

  • Compulsory ADR will not usually be controversial where it is both useful/potentially productive and the time and expense involved is minimal.
  • Compulsory, Judge-led ADR hearings are likely to be acceptable provided they are appropriate for the type of claim involved and can be resourced within the court system.
  • Compulsory mediation should be considered as it becomes better regulated, more familiar and as it is made available in shorter, cheaper formats. The free/low-cost introductory stage mediation is likely to be least controversial.

It is clear that the report marks a significant development in the role of ADR within the Court System and it seems that it is a question of when, not if compulsory ADR is introduced.

If you require advice in the event of a dispute please contact Simon Hocking via 0345 20 73 72 8 or email shocking@thursfields.co.uk

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