Starting from October 1, 2024, the Civil Procedure Rules (CPR) in England and Wales strengthen the use of Alternative Dispute Resolution (ADR) as a fundamental part of the civil justice process. These reforms, influenced by the Court of Appeal's ruling in Churchill v Merthyr Tydfil CBC, signify a shift in how courts handle litigation, giving judges the authority to require parties to participate in ADR processes. The goal is straightforward: to ease the burden on the judiciary, speed up dispute resolution, and reduce litigation costs. The increased likelihood of resolving international disputes through alternative dispute resolution (ADR) must now be considered in any London-based litigation strategy.
Under the Pre-Action Conduct and Protocols Practice Direction, part of the British procedural framework, litigation has always been considered a last resort. Moving forward, courts will have the authority to direct parties to explore alternative solutions before trial. Parties must now assess whether negotiation or other ADR methods can resolve conflict. This shift elevates ADR from a recommended option to a foundational element of the civil justice system, fostering out-of-court settlements.
The ADR methods recognised by English law include:
Mediation: A neutral third party facilitates discussions between the parties to help them reach a voluntary agreement.
Arbitration: A third party renders a binding decision on the dispute, and the parties agree to comply with the outcome. This is similar to a court judgment but in a private setting.
Early Neutral Evaluation (ENE): An independent evaluator provides an early assessment of the case’s merits, helping the parties understand their positions and encouraging settlement.
Ombudsman: In certain disputes, especially administrative or public service complaints, specialised bodies such as ombudsmen may intervene.
These reforms grant courts the power to guide parties towards ADR before trial. The CPR further allows for Part 36 offers, which are settlement proposals that can be made before and during litigation. If a case proceeds to court, the parties may be required to provide evidence that they have considered ADR. A refusal to engage in ADR could be deemed unreasonable by the court and result in cost sanctions.
The Role of ADR in the Global Judicial Context
Globally, judicial systems face significant challenges, and the UK is no exception. One of the most pressing issues is the backlog of court cases, which leads to prolonged delays in case resolution. In many countries, including Spain, the justice system is overwhelmed by the volume of cases, which often results in substantial delays. This not only impacts the quality of justice but also frustrates individuals and businesses seeking timely and effective solutions.
Implementing ADR as a mandatory step before litigation could substantially relieve the pressure on courts. While mandatory conciliation already exists in certain areas, such as employment disputes, expanding this approach to other types of proceedings would help resolve many conflicts more efficiently and cost-effectively.
ADR offers flexibility and efficiency, allowing parties to choose the best method that suits their needs, as in English law. The ability to select between mediation, arbitration, or early neutral evaluation allows litigants to reach customised agreements outside the slow and expensive court process. This freedom of choice, combined with its enhanced control of the parties, would contribute to a more accessible and agile justice system, which is increasingly necessary in Spain’s current legal context.
Our team at Guernica 37 Chambers is dedicated to promoting a fair international justice system. We are committed to using various litigation strategies in which Alternative Dispute Resolution (ADR) plays a fundamental role. We welcome this further statutory commitment to ADR, which will help move towards a more efficient judicial system. This important step will reduce litigants' costs and create a more responsive and fair framework that aligns with the modern demands for proportionality and timeliness in the pursuit of justice. Fernando del Canto
Barrister |Guernica 37 Chambers
