Solicitors remain wary of ADR despite evidence of commercial law success

Under-used resource: increased management should improve growth of alternatives

Solicitors remain wary of using alternative dispute resolution (ADR) despite the fact that only 5% of commercial court cases which go to ADR end up in court, a report has found.

The research on ADR in commercial cases and in the Court of Appeal found that commercial litigators are keener than non-commercial lawyers to go to ADR.

Between June 1996 and 2000, 233 orders for mediation were made in the Commercial Court.

These averaged 30 each year until 1998, thereafter the average figure more than doubled to 68.

Where parties were ordered to use ADR and did so, only 5% went on to continue the action in court.

Where parties ordered to ADR failed to do so, 15% ended up back in court.

Between June 1996 and June 2000, 38 cases were mediated in the Court of Appeal.

The report found that of those cases which mediation did not settle, 62% returned to court.

This was caused by special considerations with appeal cases - more likely to turn on points of law and involve public policy issues - the research concluded.

The report was done for the Lord Chancellor's Department by Hazel Genn, professor of socio-legal studies at University College London.

An earlier report by Professor Genn on ADR in the Central London County Court concluded that solicitors were acting as a deterrent to ADR ([1998] Gazette, 29 July, 1).

Comparing her research, the professor concluded that outside commercial cases, the legal profession is wary of ADR, and that 'the positive experience of ADR does not appear to be producing armies of converts'.

More management of ADR by the courts and better-timed ADR orders should improve its growth, she said.

Tony Allen, director of the Centre for Effective Dispute Resolution, said: 'ADR is still an under-used resource, but where the courts are proactive it is becoming more accepted.'

A Law Society spokeswoman said it has long championed ADR but that change does not happen overnight, adding: 'We hope the results of this research will encourage practitioners to attempt ADR whenever appropriate.'

Jeremy Fleming