JAW, JAW, BETTER THAN WAR, WAR

With litigation increasingly costly, alternative dispute resolution should form a part of every litigant's armoury, argues Nicola Mackintosh.

The Lord Chief Justice pulled no punches in the Granby Way care home closure case Cowl and others v Plymouth City Council, Court of Appeal, 14 December 2001 (see [2002] Gazette, 17 January, 1).The judgment was produced without hearing argument on the issues, yet it is a clear expression of the Appeal Court's frustration with the nature of litigation and the need for alternative dispute resolution (ADR) to permeate the conduct of a case at every stage.The closure decision under challenge in Cowl was stated by the authority to be 'final' and not to be reversed 'under any circumstances'.Given such a statement, it is not surprising that the litigation continued in polarised form.

A complaints procedure is hardly attractive when there is no prospect of the decision being altered.While there are serious criticisms of the Cowl judgment, the message should be welcomed.

It is sad that ADR is poorly understood.

It can take many forms, from letters to meetings to independent mediation.

It may achieve settle-ment, a narrowing of the issues, or a better understanding of the parties' positions.

It can produce a third, fourth or even fifth way not previously envisaged by the parties.However, it is important that ADR is not simply used as a buzz phrase without proper consideration of the particular issues raised in public law cases.Many judicial review cases may not be suitable for ADR at all, or it may be of limited assistance at a particular stage in a dispute.

Jurisprudential issues arise regarding the courts' role in developing legal principles and determining cases which raise public interest issues.There are other cases which clearly cry out for ADR.

There are difficulties which will need to be explored, such as decisions by judicial bodies under challenge, compliance with time limits for issuing proceedings, cases involving the need for interim relief, overlap between ADR and alternative remedies, and so on.

The importance of an independent, neutral element to mediate in a dispute cannot be underestimated.The benefits of being able to access a team of trained mediators with experience of public law are obvious.

Funding must be provided for any structured mediation scheme and representation of the parties.

But if addressed sensibly, these issues should not prove to present insurmountable problems.Adding a note of caution, there is a real danger that social welfare cases may be stigmatised as the softer end of the legal rights market.

This approach increasingly pervades our legal system and is unjustified.

Those public law disputes involving people with disabilities, learning difficulties or those in mental distress and their rights to health, housing or social services, concern concrete legal rights and duties as much as commercial judicial reviews.

Such cases can also be at the cutting edge of developing human rights law.What is paramount for the future is not so much the need to avoid litigation at all cost, but the need for the parties to explore all ways of resolving legal disputes, particularly bearing in mind the cost of litigation, its risks and limitations.

We all know that judicial review can be a blunt tool, even post-Human Rights Act and that pyrrhic victories can result.

Better results may be achieved in some cases via ADR.

However, it is important to bear in mind that if ADR fails, the courts have a responsibility to grapple with the case and adjudicate.

Article 6 of the European Convention on Human Rights guarantees such a right.It is surprising that the court chose the Granby Way case to express its views on ADR and judicial review in the way that it did, given the circumstances of that case.

Ironically, the ultimate result, a complete reconsideration of the underlying closure decision, was achieved by the court grasping the nettle, forcing a resolution and creating an ADR of its own.

Sometimes it takes three to tango.Nicola Mackintosh is a partner at London-based Mackintosh Duncan, which acted for the residents in Cowl