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Some thoughts on ADR
Not so long ago, if your negotiations failed and you still wanted to resolve your dispute, you had the choice of arbitration (if in contract or agreed between the parties) or litigation. While this led to simple and obvious examination questions, it did nothing to open up the array of alternative means of dispute resolution.
Then came ADR.
We were provided with lists of alternative methods of dispute resolution - adjudication, expert determination, mediation, mini-trial, etc, all had their advocates but there were no 'official' definitions of any of these methods and no-one could say definitively what each title meant. Was it necessary to know? I am firmly of the belief that any attempt at definition must restrict the ability of the parties to adapt to suit the particulars of the dispute. As there is no prescribed definition, you write the 'rules' yourselves. This being so, is there really any difference between (say) adjudication and expert determination.
To add to the confusion, ACAS has rules for mediation and conciliation which we would not recognise and 'arbitration' in the county court is excluded from the 1996 Act.
The list continues to expand. Not only do we have more 'classes' joining but we invent sub-classes such as 'facilitative' and 'evaluative' mediation.
I believe that we can all learn from alternative methods in the same way that we learn from developments in arbitration in other fields. When construction adjudication first appeared, we wondered whether the tight timetable would be workable if the adjudicator needed to ask for more information. We found that very short return periods were feasible and then had to ask why we were automatically giving 28 days in arbitration.
As we look at the concept of mediation to concentrate on party needs and desires rather than contractual rights, why not take a similar approach in early negotiation? This could also extend to adjudication, after all, it is envisaged by s.46 (1) (b) of the Arbitration Act 1996 that decisions may be in accordance with considerations other than law.
To my mind, it is only necessary, initially, to characterise the method to be followed by the means of enforcement:
(a) Determination by a third party, direct enforcement by the courts (eg litigation, arbitration). Rules and procedures enshrined in statute.
(b) Determination by a third party, enforcement by reference to contract terms (eg construction adjudication, when the contract says that the parties will comply with a decision by a third party). Rules and procedures may be included in standard or bespoke forms of contract. Rules may be implied by statute (eg construction adjudication).
(c) Assistance by a third party, no provision for enforcement (eg mediation, conciliation). Rules and procedures may be included in standard or bespoke forms of contract. Although the courts cannot require parties to seek resolution by ADR, the 41st amendment to the CPR amends pre-action protocols to provide for ADR. Non-compliance with the relevant pre-action protocol can lead to an adverse costs order.
With the variety of methods of dispute resolution available, why is it that inappropriate methods are so often employed. In particular, construction adjudication has lost reputation in some quarters due to its inappropriate use. I put this down to two main causes - firstly that consultants are insufficiently aware of the methods available and, secondly, even if aware, consultants taking the easy way out of adopting a familiar course. It has been suggested that consultants will also more readily propose a course of action which suits the consultant rather than the dispute.
The courts constantly learn from ADR. Arbitration was successful and the courts (TCC, formerly OR) adopted procedures and could compete with arbitration on cost and overall time. I now see that capping of costs is being adopted, following on from the Arbitration Act. I for one will follow developments with interest, in the hope that I will be able to understand the intricacies. Mediation has been successful and so the courts firstly encourage its use and then got in on the act as judge mediators.
By using successful procedures 'borrowed' from other methods of ADR, each method can continue to improve in its service to the parties, reducing cost and time while preserving the quality of service.
Peter Horne