Alternative dispute resolution

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Alternative dispute resolution

Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party.[1] They are used for disagreeing parties who cannot come to an agreement short of litigation. However, ADR is also increasingly being adopted as a tool to help settle disputes within the court system.[2][3]

Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years.[when?] In 2008, some courts required some parties to resort to ADR of some type like mediation, before permitting the parties' cases to be tried (the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation. This means that attendance is compulsory, not that settlement must be reached through mediation).[4] Additionally, parties to merger and acquisition transactions are increasingly turning to ADR to resolve post-acquisition disputes.[5] In England and Wales, ADR is now more commonly referred to as ‘NCDR’ (Non Court Dispute Resolution), in an effort to promote this as the normal (rather than alternative) way to resolve disputes. A 2023 judgment of the Court of Appeal called Churchill v Merthyr[6] confirmed that in the right case the Court can order (i) the parties to engage in NCDR and / or (ii) stay the proceedings to allow for NCDR to take place. This overturns the previous orthodoxy (the 2004 Court of Appeal decision of Halsey v. Milton Keynes General NHS Trust[7]) which was that unwilling parties could not be obliged to participate in NCDR.

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[8] Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this use of mediation and other NCDR processes to settle disputes.[9][10] Since the 1990s many American courts have also increasingly advocated for the use of ADR to settle disputes.[11] However, it is not clear as to whether litigants can properly identify and then use the ADR programmes available to them, thereby potentially limiting their effectiveness.[12]

  1. ^ Australian Securities and Investments Commission - Complaints resolution schemes Archived 6 January 2009 at the Wayback Machine. Asic.gov.au. Retrieved on 14 July 2013.
  2. ^ J. Pirie, Andrew (2000). Alternative dispute resolution : skills, science, and the law. Toronto, Ontario: Irwin Law. p. 5. ISBN 9781459313477.
  3. ^ "Islam, Sharia and Alternative Dispute Resolution: Mechanisms for Legal Redress in the Muslim Community", published 30 June 2013, London, UK: IB Tauris & Co. ISBN 9780857722386
  4. ^ "DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL". Official Journal of the European Union. 21 May 2008. Archived from the original on 11 June 2019. Retrieved 17 June 2019.
  5. ^ Litvak, Jeff; Miller, Brent. "Using Due Diligence and Alternative Dispute Resolutions to Resolve Post-Acquisition Disputes". Transaction Advisors. ISSN 2329-9134. Archived from the original on 23 July 2015.
  6. ^ [2023] EWCA Civ 1416
  7. ^ [2004] EWCA Civ 576
  8. ^ Totaro, Gianna., "Avoid court at all costs" The Australian Financial Review 14 November 2008. (19 April 2010)
  9. ^ Clift, Noel Rhys (3 May 2010). "The Phenomenon of Mediation: Judicial Perspectives and an Eye on the Future". SSRN 1599420.
  10. ^ "Speech by the President of the Family Division: When families fall apart, do they fall too easily into court?". 31 October 2022.
  11. ^ Shestwosky, Donna (2016–2017). "When Ignorance Is Not Bliss: An Empirical Study of Litigant's Awareness of Court-Sponsored Alternative Dispute Resolution Programs". Harvard Negotiation Law Review. 22: 191. SSRN 2945706.
  12. ^ Shestowsky, Donna (2016–2017). "When Ignorance Is Not Bliss: An Empirical Study of Litigant's Awareness of Court-Sponsored Alternative Dispute Resolution Programs". Harvard Negotiation Law Review. 22: 192–193. SSRN 2945706.