Authored By: Rooshan Saeed
Introduction
Alternative Dispute Resolution (ADR) is increasingly becoming a cornerstone of the legal system in the United Kingdom, offering an efficient and cost-effective alternative to traditional litigation. This article explores the definition and types of ADR, how it is being promoted within the UK’s civil justice system, its application in commercial disputes, and its growing role in family law. By examining key cases such as Churchill v Merthyr Tydfil County Borough Council[1] the article highlights the growing popularity of ADR and the pivotal role it is likely to continue to play in dispute resolution.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) encompasses a range of processes designed to resolve disputes without recourse to litigation. Its aim is to provide flexible, less adversarial, and more cost-efficient methods for parties to reach an agreement. There are different types of ADR.
The primary forms of ADR include:
- Mediation: mediation involves a neutral third party which facilitates discussions between disputing parties to help them arrive at a mutually acceptable resolution. The discussions between the parties are confidential and without prejudice and a settlement can be finalised by entering into a settlement agreement which can be enforced through courts.
- Arbitration: in arbitration, a private tribunal is established where an arbitrator makes binding decisions based on evidence and arguments presented. This results in a binding decision by a neutral third party.
- Adjudication: adjudication is predominantly used in construction and commercial disputes, and involves an impartial adjudicator providing a binding decision, often within a short timeframe.
- Negotiation: negotiations do not involve a third party. Instead, disputing parties directly engage with each other to settle their differences without external assistance. However, negotiations can be quite difficult where the relationship between the parties has broken down and they require a neutral third party to assist them to move forward.
- Conciliation: conciliation is similar to mediation but involves a conciliator who actively proposes solutions to the dispute.
The parties can choose the method which is most suitable to their needs as these methods underline the flexibility of ADR and its adaptability to different legal contexts and dispute types.
Promoting ADR in the UK’s Civil Justice System
The UK has made concerted efforts to promote ADR as a key mechanism within the civil justice framework. The Civil Procedure Rules (CPR) play a critical role in encouraging parties to engage in ADR. Notably, CPR Rule 1.4 requires courts to actively manage cases by encouraging ADR where appropriate.
Until recently, the courts attitude in promoting ADR was somewhat restricted. However, the case of Churchill v Merthyr Tydfil County Borough Council[2] reflects the courts’ changing attitudes in promoting ADR. In this case, the Court of Appeal decided that the courts could go further by ordering the proceedings to be stayed and parties to engage in ADR, provided that such an order does not impact a party’s right to fair trial. The court emphasised that any such order must be proportionate, aiming to settle disputes fairly, promptly, and at a reasonable cost. In doing so, the court demonstrated its commitment to fostering ADR by penalising parties that unreasonably refuse to engage in mediation.
Commercial and Construction
Likewise, adjudication has become a linchpin in resolving disputes within the commercial sector, particularly in the construction industry. The Housing Grants, Construction and Regeneration Act 1996 introduced a right to refer a dispute arising under a contract for an adjudication in an attempt to address the chronic delays and costs associated with litigation in this field. This was important as adjudication is prized for its speed and cost-effectiveness, delivering binding decisions within 28 days. This approach ensures that cash flow disruptions in construction projects are minimised, which is critical in a sector that thrives on timely delivery and strict budgets.
Beyond construction, adjudication is gaining traction in broader commercial contexts. Its focus on preserving business relationships while resolving disputes promptly has made it an attractive option for commercial entities looking to avoid protracted court battles.
Additionally, initiatives such as the Small Claims Mediation Service[3] and the promotion of online dispute resolution platforms are a further evidence of ADR’s growing integration into the civil justice landscape.
ADR in Family Law: Compulsory Mediation Schemes
Family law has also witnessed a paradigm shift with the introduction of ADR mechanisms, especially mediation. The focus on reducing adversarial confrontations in family disputes has led to the implementation of compulsory mediation schemes.
The Children and Families Act 2014 requires parties to attend a Mediation Information and Assessment Meeting (MIAM) before proceeding to court in certain family disputes. This initiative aims to encourage parties to resolve their differences amicably, thereby reducing the emotional and financial toll of litigation.
In 2024, the case of NA v LA[4] underscored the judiciary’s commitment to ADR in family law. Deputy High Court Judge Nicholas Allen KC ruled that divorcing couples should prioritise resolving disputes outside of court through mediation or arbitration. The judgment highlighted the emotional and financial benefits of ADR and clarified that prior financial disclosure is not always a prerequisite for engaging in these processes. This case illustrates how ADR can provide a constructive and less adversarial pathway even involving sensitive family matters.
Despite its benefits, compulsory mediation schemes have faced criticism. Some argue that mandatory attendance undermines the voluntary nature of ADR, while others point to the need for better funding and accessibility to ensure its success. Nonetheless, the scheme’s overarching objective of fostering constructive dialogue in family disputes remains pivotal.
Conclusion
ADR has firmly established itself as a vital component of the UK’s legal landscape. However, it is not without its disadvantages. ADR processes, such as arbitration, can sometimes be as costly and time-consuming as litigation, particularly when parties resort to complex procedures. Additionally, outcomes in mediation and negotiation may lack enforceability without formal agreements, and there is a risk of power imbalances between the parties influencing the results.
In any case, from civil claims and commercial disputes to family law, ADR offers a spectrum of mechanisms that cater to diverse needs and contexts. Cases like Churchill v Merthyr Tydfil County Borough Council[5] and the widespread adoption of adjudication in commercial disputes highlight its practical utility. Meanwhile, the introduction of compulsory mediation schemes in family law underscores its transformative potential in sensitive areas.
In conclusion, the spirit of ADR lies in its commitment to fairness, efficiency, and preserving relationships. As the legal system continues to evolve, ADR’s role in delivering accessible and effective justice will undoubtedly expand, ensuring it remains a cornerstone of dispute resolution in the UK.
[1] [2019] EWCA Civ 162
[2] Ibid.
[3] Respond to a Court Claim for Money, GOV.UK (January 19, 2012) <https://www.gov.uk/respond-to-court-claim-for-money/mediation> accessed January 27, 2025
[4] [2024] EWFC 113
[5] (n 1)
