In many countries, courts are empowered to establish alternative dispute resolution (ADR) for parties without their consent. However, there is no such law in the UK. Perhaps it will appear in the near future, since there are prerequisites for this. Alternative methods of dispute settlement are used all over the world, and as practice shows, such methods are much cheaper and more effective than litigation.
Prehistory
ADR essentially refers to all methods of dispute resolution, the only exception is judicial dispute resolution.
The opinion submitted by the independent party is not binding on the parties and the process is generally not prejudicial, so it cannot be invoked in any later or ongoing legal proceedings. Its purpose is to encourage negotiations between the parties to resolve the dispute amicably, rather than going to court.
The Case
Let us consider an example of a specific case - a trial conducted by a widow against the executors of the will of her late husband. The question that had to be decided by the court was whether it could only resort to an early neutral assessment of the case if all parties agreed, or the court could impose an obligation to apply a neutral assessment.
In accordance with the Civil Procedure Rules, the court has general powers to consider cases, take any steps or orders to achieve the main goal, including the use of a neutral assessment process to help the parties resolve the conflict issue.
The widow wanted to apply a neutral assessment, but the executors did not. They argued that since they did not consent to this procedure, the court could not compel the parties.
Decision
The Court of Appeal ruled in this case:
- The law does not explicitly require the parties to agree before a neutral assessment hearing is scheduled. It would be very easy to include such a provision, and its absence was a strong indication that consent was not required.
- Neutral judgment does not materially hinder a party's access to court, but is a step in a process that can help resolve a case fairly and reasonably.
Accordingly, the court had the power to schedule a hearing involving a neutral assessment without obtaining the consent of the parties.
Output
With the ever-increasing legal costs and significant delays in court hearings, ADR is well positioned to become a popular dispute resolution method in the UK. The success of ADR largely depends on factors such as the commitment of both parties to peaceful resolution, as well as the personal skills and willingness of the mediator to help. In most legal systems, an agreement reached by contacting a mediator is in the nature of a contract, not a judgment.
The question of whether or not to force the parties to engage in ADR during or prior to trial has been a topic that has been debated for many years. England and Wales are still far from enforcing ADR obligations, but a change in the Civil Procedure Rules to include the right to be neutral sets the stage for an early extension of mandatory ADR in the UK.
If you need to resolve a financial dispute in Europe, the first step is to contact the specialists for information on the use of ADR. The advice of qualified experts can help you figure out all the regulatory nuances before proceeding in the UK - knowledgeable means armed.
