Lady Justice Asplin, chair of the judicial/ADR liaison committee and lead judge for ADR, said: ‘This report addresses questions which are central to the shape and design of dispute resolution in the 21st century.
‘More work is necessary in order to determine the types of claim and the situations in which compulsory (A)DR would be appropriate and most effective for all concerned, both in the present system and in relation to online justice.
‘Our conclusions place another useful and powerful tool in the box. They also provide the opportunity to initiate a change of culture in relation to dispute resolution which will benefit all concerned.’
The Court of Appeal ruled that parties could not be compelled to enter mediation, in Halsey v Milton Keynes [2004] 1 WLR 3002, since this would ‘impose an unacceptable obstruction on their right of access to the court’.
Despite this case, however, the CJC concludes a compulsory ADR scheme could work well as long as certain factors are taken into consideration, including the cost and time burden on parties, the stage of proceedings at which ADR is required, and the parties’ confidence in the ADR provider.
Potential sanctions could be preventing the claim or defence continuing, or allowing the court to strike out a claim or defence if the party refuses to enter into ADR. The CJC report suggests that ‘any strike-out could be set aside if there was a valid reason for non-compliance’.
Master of the Rolls, Sir Geoffrey Vos, chair of the CJC and Head of Civil Justice, said: ‘ADR should no longer be viewed as “alternative”. This report opens the door to a significant shift towards earlier resolution.’
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