Last edited 17 Aug 2021

Compulsory Alternative Dispute Resolution

Contents

[edit] Introduction

Construction contracts usually provide for disputes to be dealt with by agreed dispute resolution procedures involving mediation, adjudication and arbitration. Often a combination of all three.

A very wide range of Alternative Dispute Resolution techniques are available. For more information, see Alternative dispute resolution.

[edit] Compulsory ADR report

In July 2021, the ‘Civil Justice Council Compulsory ADR report’ was published. The document was produced after Sir Geoffrey Vos, the Master of the Rolls asked the Civil Justice Council to review the legality and desirability of compulsory ADR. The conclusion of the report upheld the legality of compulsory ADR under Article 6 of the European Human Rights Convention.

Chair of the Judicial/ADR Liaison Committee and lead Judge for ADR Lady Justice Asplin acknowledged that more work needed to be done on the subject, but she concluded that ADR can - and should - be made compulsory under certain situations. She sees this as a necessary step in changing the overall cultural attitude towards ADR, which she feels will be beneficial for all parties involved.

Vos said the report will reshape the ADR process by stressing resolution rather than dispute. He said, “ADR should no longer be viewed as ‘alternative’ but as an integral part of the dispute resolution process.”

The report represented a change from the judicial approach of Lord Justice Dyson in 2011 who expressed concerns not only about the legality of compulsory ADR, but of its desirability.

Some experts see the shift as a reaction to UK courts that have become overwhelmed by an increasingly unmanageable backlog of cases. Under the revised approach, courts may begin to order parties to engage in ADR processes, especially if judges feel this will expedite an affordable resolution.

[edit] Call for Evidence

On 3 August 2021, the Ministry of Justice responded to the findings of the Civil Justice Council’s report on compulsory alternative dispute resolution by opening an eight week call for evidence on Dispute Resolution in England and Wales. The primary purpose of the measure is to seek input on the best ways to settle disputes.

The Ministry of Justice hopes to revise the system in a manner that decreases the number of cases that unnecessarily rely on the courts for resolution. Instead, it hopes to increase the uptake of less adversarial options through the introduction of innovative, technologically advanced processes. One approach under consideration is the promotion of pre-claim portals and court processes with integrated mediated resolution interventions.

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[edit] External resources

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