The Civil Justice Council (CJC) has recommended a greater use of compulsory ADR within the civil courts of England and Wales. In particular, it has concluded that court-mandated ADR is not incompatible with Article 6 of the European Human Rights Convention (right to a fair trial) and is therefore lawful.
That conclusion is contained in a just released report 'Compulsory ADR' (dated June 2021 but released on 12 July). The report was prepared in response to a request by the Master of the Rolls that the CJC analyse both the (i) legality and (ii) desirability of the civil courts compelling litigants to engage in ADR within litigation (beyond the limited extent to which the system already does so in certain areas).
(i) Legality:
The Report's authors undertake a detailed legal deconstruction of the proposition that compulsory ADR would breach Article 6 because it places an 'unacceptable obstruction' between would-be litigants and the courts (as most famously articulated by the Court of Appeal over 15 years ago in Halsey v Milton Keynes [2004] 1 WLR 3002). The conclusion reached is that "appropriate forms of compulsory ADR, where a return to the normal adjudicative process is always available, are capable of overcoming the objections voiced in the case law and elsewhere and could be introduced".
(ii) Desirability:
The report also discusses the key practical objections commonly raised against compulsory ADR, including those to the effect that compulsion would be inconsistent with the voluntary nature of ADR and would force unwilling parties into processes that had no chance of success. The report concludes "(W)e think we have identified conditions in which compulsion to participate in ADR could be a desirable and effective development. In doing so we recognise that the compulsory ADR processes which are already part of the civil justice system..at a number of points are successful and are accepted."
The authors do not make any detailed proposals for reform, noting that more work is necessary in order to determine the types of claim and the situations in which compulsory ADR would be appropriate. Rather, they seek in the Report "to develop a set of principles relevant to the use of compulsion". However, the Report does make three specific observations on the form compulsory ADR might take:
- "First, where participation in a suitable and effective form of ADR occasions no expense of time or money by the parties, making it compulsory will not usually be controversial.
- Second, we foresee that greater use of compulsory judge-led ADR processes will prove acceptable, given they are free and appear effective in the contexts in which they are already compulsory.
- Third, compulsory mediation may be considered, provided it is sufficiently regulated and made available where appropriate in short, affordable formats."
