On 18th November 2021, Birmingham Law Society hosted a panel of judges and practitioners on the topic of whether ADR should be made compulsory in commercial litigation. Sponsored by Henderson & Jones, the event featured keynote talks by The Hon. Mr Justice Pepperall, Presiding Judge of the Midland Circuit and Her Honour Judge Kelly, the Designated Civil Judge for Birmingham.
The panel discussed the Civil Justice Council’s report on the topic from June 2021, which suggested that compelling parties to engage in ADR rather than litigation would be Article 6-compliant, and recent statements from senior judiciary about the desirability of compulsory ADR.
Overall, the view of the panel was that most litigants will have considered ADR by the time they come to trial and that in certain cases there is no choice but to have the matter determined by a Judge; in other cases, ADR is simply not appropriate or realistic. It was acknowledged that judicial encouragement for ADR at an early stage may serve to assist, in particular, litigants in person who may not seriously have considered ADR. In addition, there is a risk that compulsory ADR will not necessarily result in parties going to mediations with a clear intention to settle their dispute, but instead to simply comply with mandatory ADR requirements.
The panel went on to consider whether Early Neutral Evaluation by a Judge (as takes place in Financial Dispute Resolution hearings in family proceedings) would be a better alternative. The panel expressed concern that already-limited judicial resources might become over-stretched by this additional workload, and that any judicial opinion expressed after only limited reading time may not be especially helpful to the parties, particularly in heavy cases.
It appears that, if compulsory ADR is to be introduced, it is most likely to be aimed in the first instance at Small Claims, and may involve some element of technology (for example, Artificial Intelligence tools which aim to identify the optimum time to suggest ADR). At this stage, however, it does not appear that there is overwhelming support from either the professions or the local judiciary for compulsory ADR in all cases, and there are no firm proposals to introduce it across the board in the near future.
Written by Amanprit Kaur