CIArb’s response to the Civil Justice Council report on compulsory ADR

The UK Civil Justice Council (CJC) has issued its report on the legality and desirability of compulsory Alternative Dispute Resolution, having been tasked with this remit in January 2021. In a significant departure from precedent established by the 2004 Halsey case which found parties could not be compelled to engage in ADR, the CJC report concludes that mandatory ADR is compatible with Article 6 of the European Convention on Human Rights, and therefore, lawful. Furthermore, the report makes clear the view that mandatory mediation would be desirable in the right circumstances.

As a global professional body committed to promoting and facilitating alternative means for resolving disputes than the courts, CIArb welcomes the CJC report as a positive endorsement of the role mediation and other forms of ADR can play in providing access to justice.

Whilst the principle of party autonomy must always be upheld and recourse to court-based adjudication should remain an option, the report sets out the point that this is entirely compatible with mandatory ADR, providing the parties are not compelled to enter into any settlement as a result of entering into ADR.

The report builds on the fact that mediation and ADR already play a significant role in the UK justice system, through the use of Pre-Action Protocols (PAPs) and the provision of information and guidance on the ADR options open to parties. It also draws on evidence from other jurisdictions where ADR has been mandated in certain circumstances.

CIArb Director-General Catherine Dixon:

“CIArb strongly believes that mediation and other forms of ADR can provide access to justice, enable business certainty and support economic growth. We therefore welcome the finding of the CJC that mandatory mediation is lawful. There are of course, important issues to be considered if mandatory ADR is to be effective, such as how to deal with perfunctory participation, and ensuring parties are not compelled to engage in processes disproportionate to their case. However, by affirming that compulsory ADR is lawful, this report opens the door to alleviating pressures on the courts thereby supporting timely access to justice. At a time of economic uncertainty, it is important that swift action is taken to normalise the use of ADR as an effective dispute resolution mechanism and CIArb is keen to work with Government, the Courts and others to make this happen.”