A brief chat between solicitors is not likely to satisfy judges that two sides have given ADR a fair crack of the whip, says Tony Allen

The Civil Procedure Rules (CPR) 41st amendment introduces a standardised approach to alternative dispute resolution (ADR) for all the protocols and the protocols practice direction (PPD) as from 6 April 2006, in effect covering all litigation before issue. All embody the same basic paragraphs, requiring parties to consider whether ADR would be more suitable than litigation and, if so, which form, warning that the court may require evidence that ADR was considered. For the first time in the CPR, it is specifically said that 'the courts take the view that litigation should be a last resort', and that failure to observe the protocols must be considered when dealing with costs.


Each protocol and the PPD summarise ADR methods appropriate for each sector. Common to each are discussion and negotiation, early neutral evaluation (which has attracted very little interest from parties and advisers) and mediation. Although discussion and negotiation strictly fall within the CPR's own glossary definition of ADR ('a collective description of methods of resolving disputes otherwise than through the normal trial process'), so does arbitration, regarded as adjudicative and thus not really ADR in the UK. As Lord Justice Dyson said in Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576: 'References to ADR are usually understood as being references to some form of mediation by a third party.'


Many disputes will continue to be resolved by discussion and negotiation. But where these fail, ADR options should not be regarded as exhausted. As Lord Justice Dyson points out in Halsey: 'Mediation often succeeds where previous attempt to settle have failed.' There is an unarguable qualitative difference between discussion and negotiation and a more formal ADR process, such as mediation. The added value of a third-party neutral to assist parties in resolving a dispute goes well beyond discussion or negotiation. A quick chat on the telephone or between solicitors without clients present is unlikely to satisfy a judge on compliance.


The amendments add: 'It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.' This is certainly true pre-issue, as an ADR order can only be sought once proceedings have been started. But to refuse ADR contrary to an ADR order can of itself lead to costs sanctions, even on a successful party. Without arguing that courts should be able to compel parties into ADR (though most other common law jurisdictions do compel ADR use), experience suggests that parties may oppose ADR, fearing that to agree might be a sign of weakness, and are often glad to have the excuse of being told to attend by the judge.


So long as judges respond to pre-action rejections of mediation by making early and robust 'ADR orders', potential litigants will not be confused. Judges can only police pre-action behaviour once proceedings are issued. The protocols are their only benchmark, and need to be upheld firmly, as happened in Burchell v Bullard [2005] EWCA Civ 358. Otherwise, the potential cost savings of front-loading will not be won and the cost of litigation will continue to spiral upwards.


However, these changes are welcome, embodying the requirement spelt out by Lord Justice Dyson in Halsey into practice that 'all members of the legal profession should now routinely consider with their clients whether their disputes are suitable for ADR'. An informed and intelligent approach to ADR decisions is necessary and likely to be tested by increasingly well-informed judges.


Solicitor Tony Allen is a director of the Centre for Effective Dispute Resolution