The Civil Justice Council published a report last week on Compulsory ADR.

The report examines:

• What is Compulsory ADR?
• Can the parties to a civil dispute be required to participate in an ADR process without their consent?
• In what circumstances, in what kind of case and at what stage should ADR be imposed?

Excerpts from the Executive Summary of the report are copied below as a useful summary.

‘To summarise our responses to the two key questions outlined above:

• The legality question: we have concluded that parties can lawfully be compelled to participate in ADR.
• The desirability question: we 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 in England and Wales at a number of points are successful and are accepted.

In our view, 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.

The rules of civil procedure in England and Wales have already developed to involve compulsory participation in ADR at a number of points. These compulsory processes are both successful and accepted.

Provided certain factors are borne in mind in designing the scheme, a procedural rule which requires parties to attempt ADR at a certain point or points, and/or empowers the court to make an order to that effect, is, in our opinion, compatible with Article 6 of the European Convention on Human Rights.’

 

The report concludes that, ‘We think that introducing further compulsory elements of ADR will be both legal and potentially an extremely positive development.’

‘Above all, as long as all of these techniques leave the parties free to return to the court if they wish to seek adjudicative justice (as at present they do) then we think that the greater use of compulsion is justified and should be considered.’

 

To read the full report click here

 

Further thoughts from Independent Mediators on this report will be published shortly.