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  • Gordon Rose

Is it time to make some forms of Alternative Dispute Resolution (ADR) mandatory?

This year marks the 25th anniversary of Lord Woolf’s seminal report on Access to Justice. The changes he recommended were intended to enable cases to be conducted proportionately and promote the use of pre-action protocols to bring about early settlement so that litigation would become a last resort.

Over 2 million civil proceedings were started in the County Courts alone in 2019, and less than 4% actually ended up being heard in court.

The majority of cases were undefended “default” judgements allowing creditors to apply for enforcement. Nearly 300,000 of the claims were defended, but the majority of those were settled or withdrawn before the hearing stage.

Based on the figures above, it appears that a quarter of a century after the Woolf report, litigation is still seen as far from the last resort, even if proceedings rarely get to a hearing.

Additionally evidence from surveying civil court users shows that the 68% would have preferred to avoid court and see court proceedings as a last resort. In the case of money and possession claimants that figure rose to 80% and 81% respectively.

The Civil Justice Council (CJC) published a report in 2018 on ADR, setting out extensive recommendations on promoting the awareness of ADR, better regulation for ADR service providers and a form of automatic referral to ADR.

The CJC published their latest report on ADR in July this year advising that it was both compatible and desirable in certain circumstances to make some forms of ADR compulsory.

The UK Government’s recent consultation on ‘Reforming Competition and Consumer Policy’ includes proposals to increase the uptake of ADR as a way to support consumers. In particular, the Government is seeking views on whether to make business participation in ADR mandatory in the motor vehicles sector and home improvements market.

The Ministry of Justice (MOJ), dovetailing with the work of CJC published a Call for Evidence (CfE) on Dispute Resolution on 3rd August 2021 with a closing date for responses of 31st October 2021

The MOJ quote in their CfE....

"The provision of dispute resolution schemes remains patchy, even though there are welcome developments including a wide range of Ombudsman schemes, private dispute resolution services and judicial early neutral evaluation projects. But more still needs to be done to increase uptake of less adversarial options."

"As we recover from the impact of the pandemic, we want to make the justice system better able to resolve disputes in smarter ways, combining pre-claim portals and court processes with integrated mediated resolution interventions."

It's your chance to have your say on the topic by responding to the CfE. The deadline is Sunday 31st October, link below.

In the CfE document you will also find links to the CJC reports of 2018 and July of this year.

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