Industry experts have welcomed the senior judiciary’s decision to give the green light to compulsory mediation – but warned against trying to do it on the cheap.

The Civil Justice Council last week reported that mandatory ADR was compatible with Article 6 of the European Convention on Human Rights and therefore lawful. The report was commissioned by the master of the rolls, a keen advocate for ADR, and is likely to herald a major shift in dispute resolution.

Lady Justice Asplin, chair of the judicial/ADR liaison committee, said the report provides a chance to initiate a ‘change of culture’ in civil justice. 

Lady Justice Asplin

Lady Justice Asplin: ‘alternative dispute resolution can be made compulsory’

‘We have concluded that ADR can be made compulsory, subject to a number of factors,’ she said. ‘More work is necessary in order to determine the types of claim and the situations in which compulsory (A)DR would be appropriate and most effective for all concerned.’

The report said that introducing compulsory elements of ADR will require a wider assessment than its remit allowed, but concluded that in principle it would be justified and should be considered – provided parties are free to return to court if they want.

It added that as long as there is no expense of time or money by the parties, it was ‘very unlikely’ that rules requiring ADR would be controversial. The obligation would be accompanied by a proper online resource available to the public and, perhaps, greater regulation of mediation.

The Civil Mediation Council (CMC) said the report should lead to ADR becoming more widely used, saving time and money in litigation. Sir David Foskett, CMC chair, said mediation could become the ‘default means’ of dispute resolution in civil justice, although the group was wary of the report’s backing for a free or low-cost stage.

It added: ‘The CMC cautions against the implicit suggestion that mediation should be carried out “on the cheap”. This could prove to be a false economy.’

Lord Justice Dyson (as he then was) ruled in 2004 in Halsey v Milton Keynes that parties could not be compelled to take part in ADR. But this conclusion has appeared at odds with recent judgments where parties have faced costs penalties for spurning the option.