Civil Justice Council publishes Report saying that ADR can be compulsory

It has been 17 years since the decision in Halsey v Milton Keynes where the court held that parties to a dispute could not be compelled to participate in an ADR process and another 11 years since Dyson LJ concluded that his decision on this question had been wrong. So the publication by the Civil Justice Council of its report looking at whether ADR can be compulsory is very welcome, particularly in light of developments in both case law and practice since Halsey.

The Report finds that, not only wasHalseywrongly decided (finding that compulsory ADR would be an unacceptable breach of Article 6 ECHR) but that case law and practice has developed significantly in the past 17 years. Indeed, the Report noted that compulsory ADR processes were already being used with success in various areas of dispute resolution.

As a director of the Civil Mediation Council, Henrietta Jackson-Stops helped to author the CMC's response to the Report and we share the CMC's concerns that although the Report goes a long way to putting ADR at the heart of civil justice it does seem to espouse a view that for mediation to be compulsory it needs to be time and cost free. This is at the same time as suggesting that the mediation profession needs to professionalise and be regulated - both of which come at a cost. There is a tension between these two views and one that needs further exploration. We believe that if you want the best chance of success at mediation then you need to appoint a properly qualified and accredited mediator and that that can't come free (unless it's of course funded by the state in the same way as the courts are funded). It is important to look at the bigger picture here - the early settlement of cases will result in financial and time savings for individuals, businesses, the community and the state - so the upfront costs of ADR (which in the case of mediation happens in 80%+ of cases) will be offset by the savings of early settlement.

The Civil Justice's Council's Report can be found here.

The CMC's response is here.