In recent years, several methods of alternative dispute resolution (ADR) have been favoured by the courts. In civil and family cases, mediation and other forms of ADR are preferred, and often recommended by solicitors before going to court. In some cases, claimants may even be penalised if they have not attempted to resolve the issue through methods of ADR beforehand, such as in employment law. In fact, in Great Ormond Street Hospital v Yates & Gard, Mr Justice Francis suggested that all cases should attempt to mediate before court, even if not to resolve the situation, but to better understand the other’s position.
It is clear therefore, that alternative dispute resolution is ultimately favoured by many in the legal system, but how is this going to affect the way that cases are approached in future? and how efficient is ADR as opposed to going to court? It must be considered, that some methods of ADR, although effective, do not produce binding decisions, such as mediation.
ADR is being used more and more in resolving disputes. However, this can depend on both parties to the claim being willing to give ADR a try. It was seen in the recent Court of Appeal case of Lomax v Lomax, that the court can, as a strategy of general case management, under rule 3.1(2)(m) Civil Procedure Rules, compel parties to undertake a form of alternative dispute resolution, even if one party does not wish to do so. However, this still requires a case management hearing, taking up valuable court time. Albeit, not the same amount of time that a full hearing would take, but valuable time all the same. The decision in Lomax v Lomax, however, was valuable in demonstrating the court’s opinion on ADR in resolving disputes. It is clear, that in some cases, the court sees that alternative dispute resolution can resolve the dispute and avoid a full hearing in court. As a result of this position, it is likely that ADR will therefore be encouraged in future, before a dispute goes to court, and even requested at case management hearings, saving valuable court time in the long run. We could be seeing a move towards ADR being used increasingly in resolving disputes, with court time becoming more and more valuable, and court waiting lists longer and longer.
Is ADR efficient in resolving disputes? I guess that’s a question that we will know the answer to over time. In the short term, ADR can resolve many disputes. It is usually a lot more cost and time effective than going to court, and on the whole, parties are usually willing to engage for this reason. However, for family disputes that can often be reoccurring and ongoing, ADR may not be a quick fix. It is clear however, that the number of people attempting ADR is increasing, and therefore it is becoming more popular in attempting to resolve disputes.
What is the future of ADR? As the court moves to encouraging the use of ADR more in civil and family cases, and more people attempt it before going to court, I believe that we could see the introduction of legislation which means that parties have to attempt ADR before taking a case to court. Although parties are encouraged to attempt ADR before coming to court, and can be penalised for not doing so, there is no obligation on parties to engage in ADR at present. This gets rid of any case management hearings ordering parties to attempt ADR and means that only the cases that have no other way of resolution make it to court.