Compulsory ADR – what's it all about?

Last month, I considered the Judicial Review and Courts Bill (the bBill). The bBill creates online procedure rules for civil courts, family courts and the tribunals.

This month we consider the Civil Justice Council’s (CJC) Report on Compulsory ADR (the ADR Report), accessible on: https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf. Published in June 2021, to much fanfare, its reception was not always kind.

New terms

Before we dip deeper into the report’s implications for practitioners and clients alike, a word, or two, about the new terminology. As we have learned from the Ministry of Justice’s (MoJ) Call for Evidence about Dispute Resolution (the call, published on 3 August 2021) “dispute resolution” is now the received term for what was previously called ADR. The “A” is no longer welcome and has been ditched, as senior judiciary, with the MoJ in tow, decided that ADR is not “alternative”. In fact, the whole thrust of the call is that dispute resolution (ADR) is to be, as we have been told, the first resort and not, as it sometimes is, the last resort. In fact, what we may have believed to be dispute resolution (i.e., court proceedings) is no longer our reality. To quote Humpty Dumpty: “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”.

Halsey halted?

With matters of nomenclature out of the way what does the report tell us about the future of dispute resolution in England and Wales? It tells us that the famous, or infamous, Court of Appeal decision in Halsey (https://www.bailii.org/ew/cases/EWCA/Civ/2004/576.html) was wrongly decided – something many said almost from the moment their Lordships’ judgment was handed down 17 years ago. The report is a masterclass in take-downs, worth reading for that alone. With Halsey duly excoriated, the report, unsurprisingly concludes that dispute resolution can now be compelled.

This has been coming for some time as dispute resolution gradually rose up the civil justice agenda during the past 30 years – hindered by Halsey but encouraged by later decisions – most recently Lomax (2019) and Telecom Centre (January 2021). No-one can say the report’s conclusion is a Damascene moment.

Yet the pace to put dispute resolution front and centre has been rapid. In less than eight months since the appointment of Sir Geoffrey Vos as Master of the Rolls we had more proposals and speeches foreshadowing compulsory dispute resolution than at any time in the eight years preceding his appointment. When the Bill receives Royal Assent, I anticipate tangible change will come quickly.

Compulsion – by what means?

This is the zeitgeist. As the report states in the Executive Summary, at para 7: “We have concluded that parties can lawfully be compelled to participate in ADR.”

Once we have forgiven the split infinitive, the first flush of excitement felt by dispute resolution neutrals, and the red hot anger of some practitioners, what does “parties can lawfully be compelled to participate in ADR” mean?

That brings me to the point of this article. The report is clear enough about the legality of compulsion – but what does compulsion mean? When and how will dispute resolution be compelled? On that crucial question, the report says this, at para 108:

“…we think there is much to be said for early ENE in all cases other than the most complex, combined with a straightforward requirement of participation in ADR at an appropriate stage of the procedure.”

Online is the future?

Finally let us not overlook para 110:

“In an online system the option to try to settle the case can be offered at virtually all stages of the process. Why should the parties not be prompted to consider the possibility of making offers throughout their engagement?”

The plan is to put the management of dispute resolution processes online. To call the forthcoming reforms sweeping may be an understatement!

Yet, such a move appears to command wide support. Some readers may recall that from October 2020 to December 2020, the CJC ran a consultation about the Terms of Reference for a review of the Pre-Action Protocols (PAPs). One issue on which views were sought was whether PAPs should be managed online. 80 per cent of respondents supported the idea of putting the PAPs online.

Next month I look at the call and share insights from the MoJ Round Table. Strap yourselves in – 2022 is going to be quite the ride!

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