Compulsory ADR – a new tool in the court’s box?
ADR has traditionally been seen as a consensual process; unless the parties agree to engage in it (either before or after the dispute arises) they are not obliged to do so.
In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 the then Dyson LJ expressed concerns about both the legality and desirability of compulsory mediation. Halsey was reaffirmed in the Court of Appeal in Swain Mason v Mills & Reeve [2012] EWCA Civ 498 at [76].
This orthodoxy was thrown into question by the decision of the Court of Appeal in Lomax v Lomax [2019] EWCA Civ 1467. Dyson LJ’s reasoning in Halsey had also been the subject of academic and extra-judicial criticism.
In Lomax the Court of Appeal held that the court has power to order Early Neutral Evaluation (ENE) even where a party objects. However its decision rested on the specific power to order ENE granted to the court by the CPR, and it was unnecessary to consider the broader question of whether a court could order other forms of ADR, such as mediation, if one party was opposed. At [27], Moylan LJ stated: ‘I do not need to enter into the question as to what Halsey determined and the extent to which it remains good law. I would only comment that the court’s engagement with mediation has progressed significantly since Halsey was decided.’
The question subsequently arose in McParland v Whitehead [2020] Bus LR 699 but ultimately did not need to be decided by the then Chancellor, Sir Geoffrey Vos, as the parties agreed to a direction to mediate. In January 2021 Sir Geoffrey Vos, by that point the Master of the Rolls, asked the Civil Justice Council to consider the ‘legality and desirability of compulsory ADR’. Its report was published on 12 July 2021 [see here].
The report concludes that mandatory ADR, which was not disproportionately onerous, would be legal, and in particular not incompatible with Article 6 of the European Human Rights Convention which provides for the right to a fair and public trial within a reasonable time. It considered that compulsory ADR may be desirable for some types of claims whilst recognising that ‘more work is necessary in order to determine the types of claim and the situations in which compulsory ADR would be appropriate and most effective for all concerned, both in the present system and in relation to online justice’ (comment of Chair of the Judicial/ADR Liaison Committee and lead judge for ADR, Lady Justice Asplin as quoted in the press release on the publication of the report on the judiciary.uk website). It is anticipated that this work will be undertaken in the near future given the Master of the Rolls’ comment that ‘ADR should no longer be viewed as ‘alternative’ but as an integral part of the dispute resolution process; that process should focus on ‘resolution’ rather than ‘dispute’.’ and his approval of Asplin LJ’s remark that compulsory ADR would ‘place another useful and powerful tool in the box’.
It remains to be seen how any such changes would be introduced and the extent to which legislation, or amendment of the rules of court, would be required. The title of the announcement on the judiciary.uk website is however clear ‘mandatory alternative dispute resolution is lawful and should be encouraged’.
Isabel Hitching KC has extensive experience of ADR, is author of chapter 23 of Emden’s Construction Law on ADR and is a member of the Civil Procedure Rule Committee.
A blog has also been published on LexisNexis.
