The UK Civil Justice Council recently issued a report determining that parties to a civil dispute can legally be compelled to participate in an ADR process (e.g., mandatory mediation) and that doing so could also be desirable under certain circumstances. The report is a significant addition to existing debates in the UK about the permissibility of compulsory ADR schemes.
The traditional view in the UK since the seminal case of Halsey v. Milton Keynes Gen’l NHA Trust [2004] 1 WLR 3002 is that forcing unwilling parties to mediate in the first instance violates fundamental rights of access to the courts. More recently, there appears to be a shift in opinion about the legality and desirability of compulsory ADR; indeed, some forms of compulsory ADR are already part of civil procedure in England and Wales.
The report does a nice job of surveying this shift and of suggesting key considerations that courts and policy makers may wish to consider when determining whether to mandate some forms of ADR, such as: (1) Is the form of ADR proposed or required too burdensome or disproportionate in terms of cost or time? (2) Are particular practice areas (e.g., financial services) better suited to compulsory programs than general litigation cases? (3) Is there sufficient confidence in the neutral person, the ADR provider? (4) Do the parties taking part in the ADR have access to legal advice? (5) At what stage should ADR be required? (6) How should compliance with a duty to mediate be assessed, and what consequences should be faced by parties who do not fully engage with the process?
Hopefully some of these considerations will be helpful to reformers thinking contemplating “mandatory mediation” and other ADR initiatives in their jurisdictions.
The report and a press release can be found here.
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