Should alternative dispute resolution be compulsory?

The Master of the Rolls, Sir Geoffrey Vos, gave an interesting talk at Hull University on the 26th March 2021 at the re-launch of their mediation centre. The full text is here.

I was particularly interested to read that The Civil Justice Council is looking at whether it is desirable for any forms of alternative dispute resolution (ADR) to be made compulsory, and if so in what circumstances.

The very nature of mediation, as a form of ADR, is that the parties participate on a voluntary basis. There are existing incentives that make mediation a better means of resolving disputes - speed and cost being prime - than going to court. However I am not at all convinced that mandatory mediation, if such a thing were to come about, would do much good for anyone.

Mediators would be forced to deal with some parties that were present simply to comply with whatever rules forced them to be there in the first place. Even the best mediators would struggle to achieve a good outcome for their clients in these circumstances and I would suggest a mediator's ethical responsibilities would make taking on such a client or clients in the first place somewhat questionable.

I am very encouraged by Sir Geoffrey's view that mediation should be attempted at any and every point at which there is a real prospect of reaching a settlement. And that mediation should not just be a one off but should be used as often as needs be.

I await the The Civil Justice Council's report with interest.