Evolution, revolution and culture shift

Abstract

Civil justice reforms in both England and Canada have consistently advocated the need for a litigation ‘culture shift’ away from the traditional adversarial trial process in resolving disputes to settlement through ADR. In seeking to implement this cultural shift, both countries have adopted distinctly diverging approaches to the issue of mandatory ADR. This paper critically analyses the current rules of civil process and associated judicial attitudes toward compulsory ADR in England and in Canada. It argues that the Canadian approach of legislating compulsory ADR provides greater consistency and predictability when it comes to ensuring that litigants undertake ADR efforts. In contrast, the English approach, which formally rejects but impliedly accepts and implements mandatory ADR, creates uncertainty for those who engage with the civil justice process. Drawing on the Canadian practice, this paper proposes ways in which the English court rules may be reformed to better integrate mandatory ADR.