The Civil Justice Council (CJC) recently carried out an extensive review of alternative dispute resolution (ADR), in which it considered proposals for reforms and alternative approaches which encourage the use of ADR.
The CJC – which received views from stakeholders, commentators, judges, lawyers and mediators - identified a spectrum of ADR techniques, from negotiation and roundtable meetings to arbitration.
Mediation, its principle process, was described as “flexible, massively successful and consistently surprises professionals and parties alike in its ability to achieve settlements where the parties appear implacably opposed".
The CLC adopted the Centre for Effective Dispute Resolution’s (CEDR) definition of mediation, namely “a flexible process conducted confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution".
The report observed that ADR was underused and too little known. In particular, there was a recognition that public awareness of ADR was "actively limited", and that there should be a general drive to ensure citizens "... are aware that when civil disputes arise, there are alternatives to the present choice of capitulation or litigation".
However, the report contained little or no support for compulsory mediation as a precursor to litigation. It was recognised that the optimum timing for mediation may vary including after the commencement of court proceedings. As to encouraging the use of ADR and mediation, it was hoped use would grow on a voluntary basis, and, in time, become "culturally normal".
It was also recognised that there was a “…chronic lack of public awareness and understanding of the operation of the [ADR] legal system as a whole”. Accordingly, it was suggested that the Government had a leading role to play, together with the professions and the judiciary, to promote ADR and advise on the available options.
In summary, when civil disputes arise there are alternatives to litigation. The challenge is to increase the awareness, availability and use of ADR and mediation. The use of ADR should, in no way, be seen as a sign of weakness; it is, as the report states, "wise and culturally normal", and considered an integral part of the litigation culture.
For help and advice on dispute resolution issues, please contact David Patterson.
