REGIONAL REVISIONS MAY 2017

Alternative Dispute Resolution

Charlotte Crilly
In this session, we will discuss…
• What is ADR? Examples of different types of ADR.
• Civil justice reforms and ADR
• The courts and ADR
• Should ADR be mandatory?
• Evaluation of ADR

• Sample exam question

What is ADR
ADR methods
• Arbitration • Determination of a dispute by an
independent third party
• Legally binding
• Used in commercial disputes

• Ombudsman • Independent complaint handlers

• Government maladministration
and some services
• Non-binding recommendations
ADR methods
• Mediation • Facilitated settlement
• Non-binding
• Focus on problem-solving

• Conciliation • Third party takes a more active role

• Used in employment disputes

• No set procedure
• Negotiation
• Parties seek to reach agreement
Civil Justice Reforms and ADR
• Access to Justice Review (the Woolf reports)

• Civil Procedure Rules 1999

(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –…
(e) encouraging the parties to use an alternative dispute resolution procedure if
the court considers that appropriate and facilitating the use of such procedure.

• Jackson Review of Civil Litigation costs

The Courts and ADR
• Dunnett v Railtrack plc [2002] EWCA Civ 2003
• Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576
• PGF II SA v OMFS Company [2013] EWCA Civ 1288
• Thakkar v Patel [2017] EWCA Civ 117
• Recent cases:
• BXB v Watch Tower and Bible Tract Society of Pennsylvannia [2020] EWHC 656 (Admin)
• DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB)
• Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd [2020] EWHC 1050 (Comm)
Mandatory mediation?
It is one thing to encourage the parties to agree to mediation, even to encourage
them in the strongest terms. It is another to order them to do so. 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... it seems to
us likely that compulsion of ADR would be regarded as an unacceptable constraint
on the right of access to the court and, therefore, a violation of article 6

Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576, Dyson LJ, at para 9.
Evaluation of ADR
• Quicker • Magnifies power imbalances
• Less expensive • May not always be in the
• Can be less formal and complex interests of individual rights
• Less adversarial • May draw out the whole process
• Confidential • Impact on access to justice
• Flexible • Privatisation of civil justice?
• Specialist expertise available
In this session, we discussed…
Sample exam question - on the discussion forum
“Mediation is no longer regarded as a useful alternative or supplement to
public courts, but as an equal or, indeed, preferable method of handling
disputes that increases access to justice.”

Explain this statement and discuss the advantages and disadvantages of

mediating civil disputes.
See you on the forum!
• Participate in the forum to discuss
and learn more about Alternative
Dispute Resolution

• Try answer the example exam

question and other questions
posted

• The more you participate, the more

you get out of the forum
discussions!