Moving on from a judicial preference for mediation to embed appropriate dispute resolution

Abstract

This paper critically considers judicial approaches to and promotion of mediation within the English civil justice system. It argues that the overzealous judicial emphasis on mediation in the ADR jurisprudence has restricted the wider concepts of ADR and ‘dispute resolution’ which in turn has created what the author terms ‘judicial mediation bias’. The paper critically explores these issues through an analysis of the ADR jurisprudence, with a focus on key Court of Appeal ADR authorities, and successive civil justice reforms. The paper makes proposals for reform, including the potential use of stages one and two of Lord Justice Briggs’ online court to promote a greater application of a variety of ADR procedures, in particular, judicial early neutral evaluation and collaborative dispute resolution.

Full issue

“…Commentary about ADR in civil justice has also been well-considered. Issues such as whether cost sanctions should be applied for the refusal to consider an ADR process (including what amounts to 'reasonable refusal'), whether litigants can be compelled to engage in ADR and whether a court has the power to order such engagement despite the lack of consent of the parties, have all dominated the ADR discourse almost since the CPR's inception (eg Spenser Underhill 2003;Shipman 2011;Clark 2019;Ahmed 2019Ahmed , 2020. This article's valuable contribution to this commentary is in its focus on Lord Woolf's vision and the Woolf Reforms, and their impact on the approach to ADR taken by the courts since 1999.…”

“…There is also commentary in the literature about the impact of the proportionality requirement, more generally, on the nature of justice delivered by the CPR: see, for example,Ahmed 2016Ahmed , 2018Ahmed , 2019Ahmed , 2020Ahmed , 2021Shipman 2006Shipman , 2011Meggitt 2014;Sime 2021;Zuckerman 2015. …”

Alternative Dispute Resolution and the Civil Courts

“…Commentary about ADR in civil justice has also been well-considered. Issues such as whether cost sanctions should be applied for the refusal to consider an ADR process (including what amounts to 'reasonable refusal'), whether litigants can be compelled to engage in ADR and whether a court has the power to order such engagement despite the lack of consent of the parties, have all dominated the ADR discourse almost since the CPR's inception (eg Spenser Underhill 2003;2005;Shipman 2011;De Girolamo 2016;Clark 2019;Ahmed 2019Ahmed , 2020. This article's valuable contribution to this commentary is in its focus on Lord Woolf's vision and the Woolf Reforms, and their impact on the approach to ADR taken by the courts since 1999.…”