Dispute resolution in England and Wales – Law Society response
While we continue to support alternative, non-litigation, methods of resolving disputes, we urge caution when it comes to making these compulsory.
In June 2021, the CJC published a report concluding that – subject to a number of caveats – alternative dispute resolution (ADR) can be made compulsory.
In August 2021, the MoJ put out a broad call for evidence on dispute resolution across the civil, family and administrative jurisdictions, seeking views on:
- engagement – what motivates parties to take part in dispute resolution processes?
- outcomes – how effective are such processes at fully resolving issues and achieving compliance compared to using the courts?
- service providers – what standards, training, safeguards for parties and complaints procedures are in place?
- fees and exemptions – what are the costs and benefits compared to using the courts?
- technology and automation – what works well or creates barriers to justice?
- equality – how are different types of parties affected (such as unrepresented parties, or those with protected characteristics)?
In our response, we’ve considered both the CJC report and the MoJ call for evidence.
We encourage the use of:
- non-litigation dispute resolution in all cases unless the urgency or seriousness of the case makes this impractical
- ADR (such as mediation, conciliation or arbitration) wherever appropriate
However, we urge caution in response to the CJC’s conclusion that compulsory ADR is lawful (subject to caveats).
We cannot endorse this interpretation of the law without a clearer explanation, supported by a more detailed analysis of the basis for CJC’s conclusion.
We continue to support ADR as an important form of dispute resolution in many cases.
ADR is appropriate where it promotes access to justice and is in the interests of both parties. In such cases, ADR can play an important role in helping parties seek resolution in a quick and affordable way.
There will always be certain categories of cases or litigants where ADR is not suitable, however.
The right approach depends on multiple factors and should generally be decided on a case-by-case basis.
To ensure a holistic approach, the government or judiciary should consider linking any changes to ongoing civil justice reforms, such as the:
- HMCTS court reform programme
- extension of fixed recoverable costs in civil cases
- review of pre-action protocols
What this means for solicitors
Currently there are no firm proposals for any changes to dispute resolution processes.
Solicitors should be aware that the MoJ and CJC may introduce changes to encourage more use of ADR soon.
We’re awaiting further developments from the MoJ, CJC and Civil Procedure Rules Committee.