The practice of alternative dispute resolution (ADR) has been growing in the UK during the last ten years.

In addition to the growth of ADR and mediation organisations within various dispute sectors, support in principle for extended use of ADR has been expressed by the CBI, the DTI, the Lord Chancellor and senior members of the judiciary as well as in various reviews of the field by the Law Society and the Bar.

The question of pilot schemes in the civil courts has been mooted in these inquiries, while recent practice directions from the Commercial Court and the High Court have shown an important lead in requiring pre-trial consideration of ADR by lawyers and clients.Lord Woolf's review of civil procedure provides an opportunity to extend these court-based initiatives.

International experience of ADR indicates also that 'court-annexed' or 'court-referred' ADR schemes are a growing phenomenon, particularly in the common law jurisdictions of the USA, Canada and Australia.

However, many of these schemes go further than the current English practice directions.

They do not merely require lawyers to tick a pre-trial checklist, they actually mandate ADR use before trial unless clients and counsel seek appropriate exemption.Settlement of litigation out of court is an essential feature of our civil justice system.

While some cases clearly must be tried, others are clearly more suitable for settlement by agreement and in many (the majority), the parties indicate a preference for settlement out of court by choosing to do so, often on the eve of trial.CEDR's experience (together with experience from other jurisdictions) suggests that ADR procedures can resolve cases earlier by agreement than the parties themselves can or than they believe possible.

This includes instances of cases that otherwise seem certain to proceed to trial.

ADR achieves this through the use of a more structured, dynamic negotiating forum than in traditional out-of-court settlement negotiations and through the influence of an effective mediator trained to tease out settlements from difficult negotiations.In addition to speeding up settlement, ADR offers the advantage of making it possible to find settlements reflecting commercial or personal interests as well as strict legal rights.

ADR settlements, however, also often have similar outcomes to court awards, ie payments by one party to another reflecting legal merits or risk of damages at trial.I believe CEDR and other ADR organisations have sufficient practical experience of commercial and civil cases to know not only that the use of ADR can take cases out of the court lists earlier than might otherwise be anticipated, but that settlements are also often achieved where parties initially are reluctant to reach an agreement with the other party.

Over 90% of CEDR mediations end in settlement during mediation, with average cost-savings of £44,500 per party reported to us by parties last year.

Mediation has been proved effective across a range of types of cases and of case values, and at various stages of litigation procedure.CEDR has been referred over 600 cases since its launch in 1990.

We know (because the cases we handle are not exceptional) that there are substantial numbers of cases in civil litigation which could be amenable to mediation which are not referred and of those referred currently only around one in four goes to formal mediation by agreement as one party frequently refuses to agree to use ADR.The reasons for limited uptake of, or agreement to, ADR fall into three major categories in our experience:-- Many advisers and parties still have only a superficial understanding of ADR (and often misunderstand it - for example, assuming it implies some form of award or procedure to 'split the difference').-- Despite the advantages of ADR, parties often find it difficult to initiate or agree to it within adversarial proceedings - fearing the unknown or fearing that to suggest it will be perceived as a sign of weakness or that a suggestion from the other side is a tactical ruse within the litigation.-- One party often perceives a tactical or financial interest in delaying settlement until either more information is available or until shortly before trial when the greatest risk of loss becomes imminent.

(In legal aid cases, an additional distorting feature is the Legal Aid Board's refusal to extend legal aid to mediation costs.

I leave aside also the suggestion I hear that lawyers have a financial interest in delaying settlement - that would be unprofessional of course.)Given these obstacles it is not surprising that there has so far been comparatively limited use of ADR within civil litigation generally or within the terms of the current Commercial Court initiative.Of course there are some (very limited) risks in using ADR, and there are questions in any case of whether ADR is appropriate or appropriate at that stage of the case.

However, the balance of benefit and risk is such that I have little hesitation in asserting that currently thousands of clients are missing out on a valuable legal practice tool through lawyer ignorance or wasteful game-playing.

Clients often join their advisers in these attributes, but that is no excuse for professionals to offer less than the best service available.I have little doubt that ADR's growing track record will ultimately ensure the spread of this practice tool through lawyers and clients experiencing the real benefits of an ADR proceeding.

The case for considering more rigorous court or judicial involvement is that, as in other jurisdictions, the barriers to ADR use will be better overcome and a process of acceptance will be speeded up considerably.

The benefits of ADR will thereby be released more quickly into the legal system for clients (and for the reputation of legal services).The procedural reforms that may arise from Lord Woolf's inquiry into more 'efficient' civil procedure or more active case management are clearly also likely to have a bearing on the nature and extent of the tactical barriers or doors to ADR available within the litigation system.In the field of family law, the Lord Chancellor has been consulting on a form of 'multi-door courthouse' where divorce clients can be referred to a mediation door or other appropriate procedures at a preliminary stage.International experience has tended to support a court-led strategy and in many jurisdictions the strategy has included elements of a mandatory approach of some kind.

In the USA ADR practice is increasingly becoming 'institutionalised' as a result of local initiatives and federal legislation.

Two Canadian provinces, Ontario and Saskatchewan, have also recently launched mandatory ADR schemes.

Research on ADR 'settlement weeks' in New South Wales suggests that significant numbers of cases are taken out of court lists by active promotion of mediation.The suggestion that someone be compelled to mediate may seem a logical contradiction.

Certainly the suggestion is an uncomfortable one for those like myself who have been closely involved in the development of ADR and are willing, if necessary, to take the 'slow track' to growth of mediation use.

However, the structure and intent behind mandatory mediation schemes is not to compel parties to reach agreement.

Rather these procedures are designed to ensure that the courts create an effective forum where lawyer s and clients actively take a 'best shot' at settlement or issue refinement at the earliest feasible stage.

This is both in clients' interests and in the public interest.

The same logic is found in the use of ADR clauses in commercial contracts before arbitration or litigation, to take parties from stalled negotiations into a third-party forum that is more objective than direct negotiations, but less formal, threatening or costly than arbitration or adjudication.Experience with mandatory schemes suggests that settlement rates may drop compared to voluntary mediation but that a majority of cases still settle within the procedure.The new High Court pre-trial checklist requirement falls some way short of some of the more 'robust' mandatory mediation schemes found in other jurisdictions.

It is, however, of major importance as the first formal step towards integrating ADR practice with standard litigation procedure in England and Wales.Lawyers have a choice at this stage of ADR's growth.

They can choose to be proactive, to learn about when and how to use ADR as a regular practice tool.

Above all, the new generation of litigation lawyers might advance beyond the old and costly belief that an offer to negotiate is a sign of weakness.Mediation is a positive stance towards solving a problem that the parties face jointly.

It is a tough-minded negotiation towards a realistic, workable settlement: it is not a soft option.Alternatively, lawyers can treat the ADR questions in the new pre-trial checklist as merely a token gesture to be completed without any real thought or change of behaviour.

If litigation lawyers take the 'business as usual' route international trends suggest there is every likelihood that the courts will increasingly look to more substantial carrots and sticks for fostering in-depth settlement efforts before or during litigation.

This will raise other complex issues about the extent to which court masters or judges should take an active role in ADR procedures and costs awards for failure to use.Many of CEDR's corporate clients are already moving towards ADR as a preferred option, while clients dissatisfied with litigation costs may test the limits of negligence actions where solicitors have failed to advise on mediation.

I wonder if I need declare a conflict of interest if asked to mediate in such a case?