Authored By: Shadin Nagmeldin Suliman Abdalla
Middlesex University
Abstract
Critics have long criticized the courts in the English legal system in the United Kingdom for being inefficient and costly for the general public, which in turn limits their access to justice and right to a fair trial. In response to the criticism, Lord Woolf brought forth reforms and introduced ADR mechanisms, Including Arbitration, Mediation, and Conciliation. These mechanisms were designed to alleviate the burden on the courts and encourage a cost effective, swift, and customizable alternative to the courts. This article will discuss the advantages and disadvantages of ADR and whether it was successful in enhancing access to justice in the UK.
Introduction
The ability to resolve disputes fairly and consistently is necessary for any justice system to uphold its principles and legitimacy, with the United Kingdom being no exception. However, with the rising costs of litigation, individuals often find themselves unable to resolve disputes without incurring both time and financial losses. To remedy the issue with litigation, Lord Woolf brought a much needed renovation to the system with the introduction of Alternative Dispute Resolution.[1] This reform introduced methods such as mediation, conciliation, and arbitration to settle disputes out of court, promising lower costs and shorter processing times. These methods are now encouraged by both the executives and judiciary in the UK as a means of reducing the load on courts and expanding access to justice. Despite that, the increasing reliance on ADR raises questions about whether such reliance might carry unintended disadvantages in limiting access to justice. This article aims to weigh the advantages and disadvantages of ADR mechanisms present in the UK and whether this introduction has enhanced access to justice or unintentionally hindered it for citizens.
ADR Promises Speedy Resolutions Even When Failed
Litigation is often synonymous with lengthy and complicated procedures which are made worse with the constant backlog in courts. ADR in contrast promises swift justice by skipping the process of going through court and awaiting judgements. The overriding objective of The Civil Procedure Rules,[2] reflects this with its aim to deal with cases in a “just and proportionate cost”.[3] ADR therefore has been promoted as a tool to benefit both the courts and the parties of the case. Additionally, the judicial attitude towards ADR shifted from not only making it an option but, in some cases, an expectation and obligation on the parties. This shift was successful with government data noting that 44% of ADR cases concluded within three months compared to only 34% of court proceedings, and 81% of ADR cases cost under £50 compared to over half of court cases exceeding £100.[4] Additionally, even when ADR fails it allows courts to skip issues already discussed and agreed upon and instead focus on the issue that failed ADR. Thus, the cost and time effective nature of ADR helps enhance access to justice for low-income or disadvantaged parties. Additionally, it aids in reducing the backlog of cases in courts and eases the burden on the judicial bodies.
The Issue with Enforcing ADR
A key issue in ADR is that while it offers speedier resolutions and lower costs, courts cannot compel parties to engage in it. Case law supports this, where it was ruled in Halsey v Milton,[5] that forcing parties to engage in ADR could result in a breach of the individual’s right to a fair trial.[6] This lack of enforceability highlights the issue with the distribution of power within the parties, as parties with more resources may force the weaker party to skip ADR and proceed with litigation. To remedy this, the Civil Procedure Rules,[7] allows courts to impose sanctions on parties that unreasonably refuse to engage in ADR. These sanctions act as a deterrence for parties not to refuse ADR when suitable, or else they will have to pay sanctions even if they win the case.[8] Lord Justice Briggs in PGF II SA v OMFS Co,[9] emphasised that silence to an invitation to participate in ADR is generally unreasonable,[10] showing the judicial bodies’ disdain with refusing ADR. However, the emphasis on sanctions may undermine individuals’ access to the courts system and right to fair trial. To mitigate these effects, sanctions are only applied when the court is satisfied that the refusal was unreasonable and courts practice proportionately on a case-to-case basis. This results in a much more balanced application and emphasis of ADR.[11] Hence, while ADR cannot be enforced to parties against their wishes, court sanctions help deter them from unreasonably refusing to engage in it.
Flexibility and Party Autonomy in ADR as a Double Edged Sword
The flexible nature of ADR makes it more favourable as it enables parties to design procedures tailored to their disputes and needs. This encourages problem solving and helps preserve relationships, especially in commercial and family contexts where adversarial litigation could damage long term interactions.[12] However, this may come at the expense of fairness, especially for parties with less bargaining power. Weaker parties may be more susceptible to being pressured to settle early on, even when they are not fully satisfied or because they lack the resources to litigate.[13] Unlike litigation, ADR lacks the procedural safeguards to mitigate such imbalances, which raises doubts about its ability to uphold the fairness principle consistently. This showcases the struggle in striking a perfect balance between allowing party autonomy while also ensuring the system remains consistent and fair. On one hand, ADR thrives because it allows parties to craft solutions based on their interests, but this emphasis may leave weaker parties exposed to unequal bargaining powers.[14] There are attempts in mitigating this risk, such as allowing parties to pick a neutral third party in mediation and arbitration procedures, usually allowing both sides to appoint an arbitrator while having one that is neutral, but it remains a valid concern. Therefore, the flexibility offered by ADR has the disadvantage of lacking the safeguards that allow courts to remain fair and unbiased.
Parallel to the above issue is the advantages and disadvantages of private procedures. A factor that helped Commercial bodies and business owners respond well to ADR mechanisms is the ability to resolve their issues privately and confidentially. Unlike in court systems, ADR is done completely in private. This makes it a favourable option to keep disputes out of the public eye and protect reputations. Yet this again leaves questions about the fairness of ADR. In a survey about the effectiveness of ADR between consumers and traders, 67% of consumers felt that the process favoured the business compared to the courts.[15] Without judicial oversight or public accountability, concerns of bias or unfair settlements may arise. Furthermore, privacy can reduce the development of precedent and the ability for future disputes to be resolved similarly. While confidentiality benefits companies looking to protect sensitive information, it also undermines the concept of open justice. Ultimately, the privacy of ADR shows its double edged nature. While confidentiality remains one of ADR’s strongest attractions, it must be balanced with safeguards to prevent bias and ensure that outcomes align with the principles of justice and accountability.
ADR Challenges with Predictability and Legal Enforceability
A further limitation of ADR is the inability to enforce the outcomes before the courts. Mediation and Conciliation are typically nonbinding agreements between parties, and parties are not obligated to comply other than out of goodwill because there is no real consequence.[16] In contrast, litigation guarantees a legally binding judgment that is enforceable through the courts, providing stronger assurance of compliance. While arbitration may be an option for parties seeking a legally binding judgement, it comes with its own set of issues. Under the Arbitration Act 1996, arbitral awards are binding and enforceable through the courts, similarly to a court judgment. However, the grounds for challenging or appealing an award are strictly narrow. Sections 67-69 of the Act allow challenges on limited bases such as lack of substantive jurisdiction, serious irregularity, or, with leave of the court, an appeal on a point of law. The threshold is high for appeal, and courts are generally reluctant to interfere with arbitral awards in order to preserve finality and party autonomy. This can be problematic where a decision appears unfair, yet does not fall within these strict categories.[17] Thus, ADR faces critical issues with its enforceability, and even Arbitration, with its limited options for appeal, highlight a key drawback of ADR in the UK.
ADR and Access to Justice in the UK
The overarching aim of ADR within the UK legal framework has always been to enhance access to justice. Lord Woolf’s reforms were directed at reducing barriers such as cost, delay, and complexity.[18] In a way, ADR has succeeded in making dispute resolution more accessible for those who would otherwise be deterred by the prohibitive costs of litigation or prioritise maintaining relations. The high success rate of mediation and its ability to preserve relationships further support its contribution to justice that goes beyond dispute resolution. However, doubts remain about whether ADR is a true solution or a Band-Aid solution covering a deep issue. The informality, lack of precedents, and potential for imbalances in bargaining power mean that while ADR improves access, it does not always guarantee that outcomes are fair.[19] Furthermore, ADR lacks many of the protections and mechanisms available in Litigation, such as recognising equity and equitable remedies. ADR mechanisms can incorporate equitable remedies, but their enforceability and scope depend on whether the process is contractual and the ultimate decision lies with the courts. Therefore, ADR’s role in promoting access to justice is partially successful. It expands entry into the system but does not necessarily guarantee the same level of protection as formal court proceedings, nor does it solve the underlying issue within the English justice system.
A Look Into the Future of ADR and The Final Conclusion
Looking ahead, ADR was a necessary and integral addition to the English legal system. One way ADR could improve is by adding safeguards to protect weaker parties from power imbalances. For example, legislatures can provide clearer statutory guidance regarding mediator neutrality, mandating disclosure of potential conflict of interest and providing a stronger framework that ensures vulnerable participants are not exposed to coercion. Furthermore, ADR would benefit from strengthening the enforceability of outcomes rather than relying on goodwill. Increased transparency could enhance trust in ADR without undermining confidentiality. Governments could publish anonymised data on outcomes, conduct, and success rates, which could help ensure accountability and inform best practices without compromising the privacy ADR promises. Moreover, greater investment in public awareness campaigns and easier access to affordable ADR services could ensure that individuals and small businesses are also aware of the advantages of ADR, and not just large corporations. This helps raise public awareness and make sure the majority are able to make use of ADR processes confidently. If these reforms are adopted and enforced, ADR will continue to evolve as a viable dispute solving mechanism alongside litigation while ensuring both efficiency and fairness in the UK justice system and maintaining the advantages of lesser costs, flexibility, and providing a medium for parties to resolve disputes collaboratively.
In conclusion, while ADR had its shortcomings, it was a welcome change to the English legal system and was crucial in tackling the issues with access to justice. ADR was able to address and tackle issues within the system, such as the high costs and lengthy procedures in litigation, which helped increase the accessibility of justice for lower Income areas. However, while ADR solved some issues, it is not to be looked at as perfect. ADR struggles with its lack of precedent, power imbalance, and issues with enforceability. These issues show that even with ADR being introduced, it cannot be seen as a blanket solution free of fault. Additionally, these issues do not undermine the effectiveness of ADR in fulfilling its purpose and can be fixed by the legislature and judiciary by implementing further reforms and balancing transparency and public scrutiny. Hence, ADR has helped enhance access to justice in the UK and generally, the advantages of ADR outweigh its disadvantages, and further reforms will only enhance its effectiveness.
Bibliography
Primary sources
UK Legislation
Arbitration Act 1996
UK Secondary Legislation
Civil Procedure Rules 1998
Treaties
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (Rome, 4 November 1950, ETS No 5, 213 UNTS 221)
UK Cases
Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576
PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288
Secondary sources
Journal Articles
Chaturvedi N, ‘Alternate Dispute Resolution (ADR): Advantages & Disadvantages’ (2022) 2 Jus Corpus LJ 766
Celik DD, ‘Judicial Review under the UK and US Arbitration Acts: Is Arbitration a Better Substitute for Litigation?’ (2013) 1 IALS student law review.
Gazal‐Ayal O and Perry R, ‘Imbalances of Power in ADR: The Impact of Representation and Dispute Resolution Method on Case Outcomes’ (2014) 39 Law & Social Inquiry 791
Books
Finch E and Fafinski S, English legal system (7th edn, Pearson Education, Limited 2018)
Woolf H, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO 1996)
Websites
‘Resolving Consumer Disputes: Alternative Dispute Resolution and the Court System’ (GOV.UK, 11 Apr 2018) <https://www.gov.uk/government/publications/resolving-consumer-disputes-alternative-dispute-resolution-and-the-court-system> accessed 23 Sept 2025
[1] Harry Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO 1996).
[2] Civil Procedure Rules (CPR) 1.1.
[3] ibid.
[4] ‘Resolving Consumer Disputes: Alternative Dispute Resolution and the Court System’ (GOV.UK, 11 Apr 2018) <https://www.gov.uk/government/publications/resolving-consumer-disputes-alternative-dispute-resolution-and-the-court-system> accessed 23 Sept 2025.
[5] Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576.
[6] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (Rome, 4 November 1950, ETS No 5, 213 UNTS 221), Art 6.
[7] CPR, 3.8 (1).
[8] Halsey (n 5).
[9] PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288, [34].
[10] ibid.
[11] AKC Koo, ‘The Role of the English Courts in Alternative Dispute Resolution’ (2018) 38 Legal Studies 666.
[12] Nilakshi Chaturvedi, ‘Alternate Dispute Resolution (ADR): Advantages & Disadvantages’ (2022) 2 Jus Corpus LJ 766.
[13] Oren Gazal‐Ayal and Ronen Perry, ‘Imbalances of Power in ADR: The Impact of Representation and Dispute Resolution Method on Case Outcomes’ (2014) 39 Law & Social Inquiry 791.
[14] ibid.
[15] Trade D for B, ‘Resolving Consumer Disputes: Alternative Dispute Resolution and the Court System’ (GOV.UK, 11 Apr 2018) <https://www.gov.uk/government/publications/resolving-consumer-disputes-alternative-dispute-resolution-and-the-court-system> accessed 23 Sept 2025.
[16] Emily Finch and Stefan Fafinski, English legal system (7th edn, Pearson Education, Limited 2018) 164.
[17] Devrim Deniz Celik, ‘Judicial Review under the UK and US Arbitration Acts: Is Arbitration a Better Substitute for Litigation?’ (2013) 1 IALS student law review.
[18] Woolf (n 1).
[19] Celik (n 17).
