All aboard the ADR bandwagon

Introduction
The Magna Carta contains the famous promise; "to no one will we sell, to no one will we deny or delay right or justice." In a society where disputes were more usually settled by private armies, this clause legitimised an alternative dispute resolution process; relying on the courts to ensure that justice was available to all.
 
For many years now it has been argued that recourse to the courts is neither necessary nor desirable in many cases; ADR in the 21st century means finding a quicker, cheaper, more effective alternative to the courts themselves. Before the ADR bandwagon becomes unstoppable, we need to ask some questions about whether diverting cases away from the courts and into ADR means that as a result, in some cases we may be denying, delaying or selling justice.
 
The Halsey judgement
Considering ADR
The Halsey judgement in May this year (note 1), set out some clear guidance on the way in which courts should approach ADR. On the one hand, courts have a duty to encourage the parties to use ADR where it is considered appropriate; ADR is understood in this context to mean "some form of mediation by a third party". ADR has a number of advantages over the court process, including the fact that it is generally cheaper and has a wider range of solutions than litigation. "All members of the legal profession who conduct litigation should now routinely consider with their clients whether disputes are suitable for ADR".
ADR and compulsion
On the other hand, the Halsey guidance goes on to state that mediation and ADR processes have disadvantages as well as advantages, and are not suitable for every case, so there should not therefore be a presumption in favour of mediation. A distinction is made between the duty of the court to encourage parties to use mediation, and the power to force parties to use mediation against their will. Lord Justice Dyson said; "It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court." He added that to compel parties to attempt mediation risks adding to the total costs, delaying the date of the hearing, and bringing ADR into disrepute.
 
ADR and costs
The Halsey judgement also reaffirms the principle of English law that costs follow the event, and that the losing party should pay the costs of the winning party. If the losing party wants to claim that the winning party should pay their legal costs because they refused to mediate, then the onus is on that losing party to show that the winner¡¯s refusal was unreasonable.
 
Previous court judgements
The Halsey judgement reverses the trend of recent court judgements which have promoted ADR in two ways: by refusing to hear a case in the courts where there was an ADR alternative which had not been tried (note 2), and by penalising successful parties who had refused an offer to mediate by making them pay the costs of the case (note 3). Parties attempting to justify a refusal to mediate also got short shrift: the fact that a party believed they have a watertight case was not an acceptable reason to refuse mediation (note 4), nor was the fact that a party believed that the dispute involved a point of law which needed to be resolved by the courts (note 5)
 
ADR and public policy
These court judgements follow a trend in public policy towards diverting cases away from the courts and into mediation or some other ADR option. Public policy has been moving in this direction since "Access to Justice" was published in 1996, when Lord Woolf argued strongly that litigation should be a last resort, and other routes to resolution should be tried before going to court. This "last resort" principle was embedded in the eight pre-action protocols which have been introduced since 1999, and the general pre-action principles introduced into the 30th update of the Civil Procedure Rules in 2003 (note 6)It is also encouraged by the post-Woolf CPR provisions for active case management by the courts, and the courts¡¯ powers to impose cost penalties on parties refusing to consider ADR before making a court application (note 7)
back to top
 
Public policy on ADR post-Halsey
The Halsey judgement appeared to be a victory for common sense. It recognised that there are advantages and disadvantages to both ADR and to the court process, that the decision about which option to choose ought to depend on a number of factors relevant to the individual case, and that there should be no presumption in favour of one particular route. It also strongly opposed the idea that people could be forcibly diverted from courts into ADR, and re-asserted every citizen¡¯s right to a fair and public hearing. However, a number of recent initiatives from different government departments indicate that the Halsey approach has not yet been taken on board. ADR is still being promoted in a way which might seem to be in conflict with the Halsey judgement.
 
LSC consultation on civil Legal Aid July 2004
On July 22nd the LSC published a new consultation paper titled "A new focus for civil legal Aid ¨C encouraging early resolution; discouraging unnecessary litigation". The main aim of the proposed changes is to reduce the civil legal aid bill for litigation, by "encouraging" those eligible for public funding to treat courts as a last resort, and to try ADR options before pursuing legal remedies. One of the proposals in the paper is to implement an as yet unused clause in the current Funding Code stating that "an application for legal representation or support funding may be refused if there are complaint systems, ombudsman schemes or forms of ADR which should be tried before litigation is pursued" (note 8). It also proposes that complaints about the police or about the NHS will not be publicly funded for litigation unless the complainant has taken their problem to the Independent Police Complaints Commission or through the NHS Complaints Procedure for investigation first.
 
DCA consultation on tribunals July 2004
The DCA consultation paper on "Complaints, Redress and Tribunals" also published in July proposes a unified tribunal system "which will not only provide formal hearings and authoritative rulings where these are needed, but will have as well a mission to resolve disputes fairly and informally either by itself or in partnership with the decision-making department, other institutions and the advice sector." The Ministry of Justice sums up its approach as "proportionate dispute resolution".
 
DCA in-court mediation pilots
The DCA is piloting and researching a number of in-court mediation schemes, in order to identify and then replicate successful models. A new pilot in the Central London County Court, begun this March, selects cases at random each week, and assigns them to mediation rather than to a court hearing. Under this scheme, parties have to opt out of mediation rather than opt in, and justify their refusal to the judge. According to the practice directions, the judge has the right to order them to try mediation, to refuse to hear the case if s/he feels the refusal to mediate is unreasonable, or to impose cost penalties on the party refusing mediation.
back to top
 
NHS clinical negligence claims consultation 2003
The consultation paper issued last year by the chief medical officer, "Making Amends" proposed to establish an independent, ombudsman-like authority to investigate clinical negligence claims and propose appropriate remedies. Legal Aid to challenge these decisions in the courts would be restricted or refused, and mediation encouraged.
 
ADR and access to justice
Are all these initiatives to be resisted because directing people into ADR might seem to restrict access to courts? Does ADR inevitably deny or delay justice?
 
The value of ADR
On the one hand, it is clear that ADR can offer processes and remedies that more formal dispute resolution options such as courts and tribunals cannot. Parties looking for explanations or apologies rather than high levels of compensation may well be better served by a more personal and less rigid procedure. Parties who cannot avoid an ongoing relationship, such as separating parents, neighbours, or employees and employers, may well find that mediation facilitates better communication, and doesn¡¯t exacerbate the dispute in the way that legal proceedings can. Many parties may find that access to mediation is quicker, cheaper and less stressful than the courts. Individuals or advice agencies looking to achieve systemic change in a local authority or government department may find that an ombudsman investigation is more effective than litigation over an individual case.
 
The value of the court process
On the other hand, there are always cases where access to justice will mean speedy access to the courts, with public funding available for those who cannot otherwise afford it. Sometimes the weight of the law is needed to put pressure on recalcitrant individuals or organisations. Sometimes legal precedents need to be relied on, or to be established for future cases. Sometimes human rights are involved, and need to be publicly asserted and defended. There are cases in which public interest dictates that a public hearing should take place and a public decision be made. In many cases the inequality between the parties indicates that due process is the best way to ensure at least some degree of equality before the law. And there is always a risk that diverting people into ADR before allowing access to the courts will delay justice.
 
When is a dispute not a dispute?
We also need to question the increasing use of the term "dispute resolution" to cover everything that is brought before the courts. The rather Orwellian practice of using the language of "disputes" can imply an equality between the parties in the dispute; you might have a dispute with your neighbour, or perhaps with a dodgy builder. Is it appropriate to talk about a "dispute" between a vulnerable individual and a government department or local authority, where basic needs such as subsistence-level benefits or a roof over your head are at stake? Calling a challenge to the state a "dispute", and proposing to resolve it in the way a dispute between private citizens might be resolved, might well lead to a travesty of justice.
 
Conclusion
The DCA refers to its current policy as "proportionate dispute resolution". Proportionate dispute resolution is not necessarily a bad principle, just a slightly ambiguous one. Proportionate to what? Are we talking about ensuring that individuals have access to the most appropriate dispute resolution process for their individual needs, and the circumstances of their case? Or are we as a society saying that some disputes are just not important enough to justify access to the courts? And if so, who decides what is important enough?
 
It is perhaps worth noting that the promise of justice in the Magna Carta comes in at clause 40 out of a total of 63 clauses; the equally well-known habeas corpus clause is number 39. The first 38 clauses mainly concern issues of more immediate importance to the wealthy barons, such as inheritance tax and control over marrying off wealthy wards and widows. There has always been a temptation for those in power, however well-intentioned, to prioritise money over justice. What people need ¨C and especially the people who have the least power in our society ¨C is proper choice. And of course choice must be accompanied by access to good quality, independent information and advice, in order to make the best possible choice available.
 
There does seem to be a public policy ADR bandwagon at the moment, which it is increasingly difficult to slow or stop. The original "bandwagon" was precisely what it says ¨C a wagon with a band of musicians, accompanying a political candidate attempting to gain public support. On a bandwagon, music, noise, movement and spectacle are intended to override intelligent and independent appraisal. What we need in the field of ADR, as Varda Bondy concludes in her article "Who needs ADR?" in this edition of Legal Action, is an opportunity to jump off the bandwagon; we need to engage in independent research and evaluation of the many different options available, and facilitate intelligent assessment of the most appropriate routes to justice.
 
back to top
 
Notes
Note 1. The full text of the judgement can be found on the Court Service website. back
Note 2. R(Cowl) v Plymouth City Council [2001] EWCA Civ 1935 back
Note 3. Dunnett v Railtrack plc [2002] EWCA Civ 303 back
Note 4. Hurst v Leeming [2001] EWHC 1051 (ch) back
Note 5. Royal Bank of Canada - v - Secretary of State for Defence [2003] EWHC 1479 (ch) back
Note 6. See paragraph 4.2 of the protocols practice direction . back
Note 7. S1.4 (2.e) Active case management includes ". . . encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate, and facilitating the use of such procedure". back
Note 8. Funding Code 2000, criterion 5.4.3 back
back to top