The Courts are applying increasing pressure on parties to use ADR. The Court of Appeal confirmed in Churchill v Merthyr Tydfil that a court could order compulsory mediation.
On one level this seems surprising. Suppliers of a service do not generally encourage let alone require you to use a different one.
Perhaps it is time to question the “alternative” in ADR?
I believe that the UK Courts and indeed the UK Parliament have failed to modernise. They proceed in what might be described as a culture of post-imperialist complacency with an assumption that our institutions are universally respected as excellent. A good example of this is in the introduction to the stimulating television programme “Murder, Mystery and My Family”. The first shot is of the Royal Courts of Justice with a voiceover “British justice the envy of the world”. Really? Recently a criminal barrister reported that a client who had been on bail for two years had had his trial listed in 2029 resulting in a total of six years on bail for a criminal offence. This period may be extended if in 2029 the Court cannot find a Judge or the Court roof is leaking.
In relation to civil process with which I am more familiar there are probably only two problems that is that it is very expensive and not very good.
The cost of civil litigation has grown exponentially over three decades despite or more plausibly because of attempts at judicial control. Indifference to exorbitant bills of costs is no doubt fuelled by the fact that costs of litigation are a significant export in the globalised market.
Both process and law have become excessively intricate and inwardly focused. Despite nominal complaints, Judges seem prepared to proceed on the basis of excessively lengthy arguments and citation of multiple authorities. Much of which seems to be irrelevant to the parties to the dispute.
So perhaps the answer is to make mediation the starting point with litigation a default position? To an extent, the Courts are acknowledging the advantages of mediation by their encouragement or even requirement for parties to engage in it. There are interesting precedents in history where disputes were predominantly determined by mediation for example in medieval Antwerp. This practice developed because there was a pool of respected and appropriate individuals able to mediate. Interestingly that is now the position in the United Kingdom. There is no doubt that there is a good supply of competent mediators. By way of contrast complaint is frequently made of difficulty in recruiting suitable individuals to undertake judicial function.
The first step might be the establishment of a national mediation service? No doubt, the government would baulk at the cost. However, if it was accepted that there were clear advantages in reducing cost and delay, then surely it is worth considering? Increasingly, individuals believe that the Courts are run for the benefit of the rich and powerful. Resolving more disputes through mediation might reduce social alienation which is clearly damaging.
