Civil litigants in England and Wales can lawfully be compelled to use alternative dispute resolution (ADR), according to a new report by the Civil Justice Council (CJC).
Mandatory (alternative) dispute resolution is lawful and should be encouraged: Mandatory (alternative) dispute resolution is lawful and should be encouraged | Courts and Tribunals Judiciary
Compulsory ADR: Civil-Justice-Council-Compulsory-ADR-report-1.pdf (judiciary.uk)
“Parties should be encouraged to accept mediation, for example by imposing sanctions on those who refuse to enter into it, the report advocates. It suggests sanctions could be ‘to prevent the claim or defence continuing, either by making the commencement of proceedings conditional on entering ADR, or empowering the court to strike out a claim/defence if a party fails to comply with a compulsory ADR order at a later stage in the proceedings.’ It adds that any strike-out could be set aside if there was a valid reason for non-compliance.
Evaluative appraisals in the form of early neutral evaluations and financial dispute resolution (FDR) hearings in the Family Court would be candidates for compulsory mediation, the report indicates. FDR is already a standard and compulsory part of the procedure to be followed when a party makes an application for a financial remedy under Part 9 of the Family Procedure Rules 2010, and usually takes place following the first directions hearing. Both parties must attend the FDR unless the court orders otherwise.
‘ADR should no longer be viewed as an “alternative” but as an integral part of the dispute resolution process,’ commented Vos. ‘That process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.’”
Extract from STEP Industry News 15.07.2021.
Therefore, if an application is made for JENE to be followed by Chancery FDR/Mediation, the court can grant the application without the consent of an opposing party. Since ADR is to be encouraged, a party should not be penalised for making an application if the application has merit.
This is timely, as I am training to qualify as a Civil Mediator in 9 days time.
For more information please visit ‘Will Trust & Probate Disputes’ – https://newsite.carlislam.co.uk/contentious-probate
www.ihtbar.com – ‘Mediation of Art & Cultural heritage Disputes’
See also my article published in Trusts & Trustees – ‘Judicial ENE – The new normal’ on the publications page at www.ihtbar.com
In the Article I argued:
‘By analogy, following Lomax (supra) can the court order a Chancery FDR without consent, i.e. after imposing a JENE? Arguably, yes, because:
i. CPR, r.3.1(2)(m) does not expressly exclude FDR—what it does is to illustrate the application of the underlying principle by reference to ‘Early Neutral Evaluation’;
ii. the issue that was before Mrs Justice Parker in the
High Court in Lomax,6 was whether the court had the power to order either ‘an Early Neutral Evaluation Hearing (‘ENE’) or Financial Dispute Resolution Hearing (and by extension give directions for it) in the absence of consent pursuant to amended Civil Procedure Rule (CPR) 3.1(2)(m.)’;
iii. at paragraph 111 of her judgment, Mrs Justice Parker concluded, ‘on the finest of fine balances’ that she could not order either, and that this conclusion ‘may well be wrong, and overly cautious’;
iv. Mrs Justice Parker further observed that: ‘FDR cannot be considered just a sub-species of ENE’ (paragraph 118); and ‘the current Rules are insufficiently precise in their formulation for me either to conclude, or be confident that the Rule makers intended . . . that the term ENE in the amended Rule is intended to govern FDR as well’ (paragraph 119);
v. the learned judge urged, ‘the Rules committee (a) to clarify whether ENE is to be considered compulsory and (b) to give consideration to providing a clear route to compulsory FDR in appropriate civil proceedings a prime example in my view being Inheritance Act litigation. The arguments for the court having power to do so are strong and the experience in the Family Division of court-controlled intervention presents a very favourable picture’;
vi. in Lomax (supra), Lord Justice Moylan stated:
Looking at the issue more generally, as I have already described, the great value of a judge providing parties with an early neutral evaluation in a case has been very well demonstrated in financial remedy cases. Further, the benefits referred to above have been demonstrated not only in cases where the parties are willing to seek to resolve their dispute by agreement and are, therefore, willing to engage in an FDR. In my experience and that, I would suggest, of every other judge who has been involved in financial remedy cases, the benefits have also been demonstrated frequently in cases in which the parties are resistant or even hostile to the suggestion that their dispute might be resolved by agreement and equally resistant to the listing of an FDR. As Norris J said in Bradley v Heslin  EWHC 3267 (Ch):
‘24. I think it is no longer enough to leave the parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken. In boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves.’
(Paragraph 29) . . .
If the intention had been to require the parties to consent, it would have been very easy to make this clear by expressly providing for this. In my view, the absence of any such express requirement is a powerful indication that consent is not required (Paragraph 30); and vii. while the comments made by Lord Justice Moylan in paragraphs 14 and 29 of his judgment, were made obiter, in paragraph 32 of his judgment, the learned judge found, ‘In conclusion, I see no reason to imply into subparagraph (m) any limitation on the court’s power to order an ENE hearing to the effect that the agreement or consent of the parties is required’, therefore his conclusion about the meaning and scope of CPR, r.3.1(2)(m) is an integral part of the ratio in Lomax, and by analogy applies to FDR.
The stage is therefore set, for either a test case, or the Rules committee to clarify whether FDR (including Chancery FDR) can be ordered without consent.
The author argues that on a wide interpretation of CPR, r.3.1(2)(m), and subject to compliance with any other procedural requirement, for example, where the interests of minor and unborn beneficiaries are involved, that the court has the power to make any direction ‘for the purpose of managing the case and furthering the overriding objective’ that it sees fit to order.’