The Ministry of Justice has published a Report summarising the responses it received to a Call for Evidence it issued in August last year.
Although entitled a Call for Evidence on Dispute Resolution in England and Wales, the document was in fact focused on methods of resolving disputes apart from litigation – including mediation, conciliation, arbitration, Ombudsmen schemes and similar. (The somewhat confusing reference to such processes as simply “dispute resolution” reflects the recent policy of moving away from the description of non-court resolution as “alternative”).
The Call for Evidence sought views on a range of topics concerning non-court resolution, including drivers of engagement, standards and regulation of ADR providers, and the use of technology. It was described as dovetailing with the Civil Justice Council’s (CJC) reviews into ADR in recent years, including its June 2021 report endorsing in principle the use of compulsory ADR in the English courts.
A total of 193 responses to the Call for Evidence were received. Given that it sought input from all categories of stakeholders across the entire civil, family and administrative jurisdictions, it is unsurprising that the views on almost all topics were “mixed”, including on the hot topic of compulsory ADR.
Next steps
The Report does not include any policy proposals or recommendations, or identify any specific future workstreams. The “Conclusion and Next Steps” section is limited to a paragraph stating:
“The information gathered from this consultation exercise will inform the government’s developing work on how to utilise dispute resolution processes to deliver swifter, more cost-effective and more consensual access to justice. Any future policy proposals will be subject to further public consultation.”
We have previously made the point that it is difficult to analyse the role of ADR in the civil justice system in any meaningful way from the perspective of the entire system. The factors that influence how and when it can best be employed, and how to optimise its use, differ markedly across the very broad spectrum of claim types. What may be appropriate in one area may be ineffective or detrimental in other areas.
While that fact is commonly acknowledged briefly in policy discussions around ADR (including this Report), the substance has remained for the most part focused at a high level. It is hoped that the next stages of the various reforms and developments currently underway will reflect this reality more substantively by considering separately the particular features of different categories of civil claims.
For further information, please contact:
Jan O’Neill, Herbert Smith Freehills
Jan.ONeill@hsf.com
