When Is ADR Not An Alternative?

Whilst addressing the Chartered Institute of Arbitrators at its recent mediation symposium, Lord Justice Briggs set out his recommendations for the future of the civil dispute resolution process.

Briggs proposed a three-stage process whereby cases would first be referred to an automated ‘triage’ where the merits of the case would be considered, followed by arbitration conducted by an assigned case officer with only those cases not capable of being resolved any other way being the subject of a judicial decision. He felt the affect of such a system would be to bring ADR ‘into the mainstream.’

Briggs recommended the new court be called a resolution or solutions court. ‘In short, it seeks to take the ‘A’ out of ‘ADR,” he opined. Briggs went on to say that neither mediation nor other forms of (A)DR would become compulsory, albeit such alternatives would be brought into closer proximity to the court resolution process.

Judges often give strong ‘guidance’ that parties should consider mediation, with the added nudge of a stay of proceedings in the interim, as a result of which parties may feel that they have no option but to mediate. However Lord Justice Briggs believes it unlikely that mediation would ever be made compulsory. This may be due to the fact that ordering parties to reach an agreement would often be ineffective and, on the face of it, counterintuitive.

There is of course the argument that the introductions of MIAMs prior to issue proceedings in the family arena has effectively provided a compulsory requirement to mediate in those cases, albeit with certain exceptions. The difficulty being that participants often attend at such appointments with the court application in their hand, ready to be signed by the mediator. It is therefore clear that they have no intention to engage in the mediation, they are simply going through the motions required of them.

That is not to say that MIAMS have been ineffective of course and progress, if not resolution, is often reached at such appointments, however the timing of a decision to mediate can be as important as the decision itself and thus the compulsory requirement, it would seem, is not likely to be imposed in the civil courts.

Whilst the format remains unclear it does appear that mediation will play a large role in the future of civil dispute resolution. Indeed whilst it is unlikely that parties will be ordered to engage, it is arguable that little choice is being left for parties given the potential cost consequences of failing to do so. A cost/benefit analysis will need to be carried out in each case as to whether mediation should be undertaken, and whilst it seems likely that the choice will always have to be made, the costs of not mediating appear to be increasing each day, with no sign of abating.

Dean Thistle is an accredited civil and commercial mediator.