ADR: An Irreversible Tide?

Abstract

THE LAST eight years have seen remarkable developments in the advance of alternative dispute resolution (ADR) in English procedural law. Many have seen its increasing attraction as a highly desirable means of reducing the burden of civil litigation on commercial organizations and public bodies alike, as well as on those of limited means who find themselves involved in civil trials for which public funding is no longer available.1 Others have seen the accelerating progress of ADR as a serious threat to the standing of the courts as expositors of English commercial law by reducing the amount of commercial litigation and thereby the rich flow of the judicial development of English law. Apart from the somewhat limited jurisdictional facility provided to judges in civil cases outside the Commercial and Admiralty courts by the CPR,2 the development of a procedure in commercial litigation giving rise to an order encouraging the use of ADR has been initiated by the judges under their inherent jurisdiction and not by legislation.3 However, the development of ADR as an increasingly important feature, not only of civil litigation procedure but also of commercial contracts, suggests that the time may be approaching quite rapidly when primary legislation will have to be introduced in the United Kingdom. The relationship between the courts and ADR has now begun to move in a direction towards a number of characteristics similar to those found in the relationship between the courts and arbitration. That is a relationship which has been governed by primary legislation for nearly 150 years. Already, the European Commission's Green Paper on Alternative Dispute Resolution in Civil and Commercial Law 4 has raised for formal consideration by Members States whether there should be EU legislation governing a wide spectrum of the relationship of ADR with civil litigation procedure. …