The introduction of ADR was necessitated by the need to provide access to justice for all, through facilitating the speedy disposal of disputes and inexpensive procedures. The success of ADR around the world has encouraged both the Courts and litigants to resort to different forms of ADR to resolve disputes. Though ADR saves time and money and helps the litigants to resolve a dispute in the manner best suited to their desire, such considerations cannot always be the driving criterion for justice. Interests of justice sometimes may require confrontational and lengthier processes. Thus, ADR has not become a replacement, but rather a necessary complement to the traditional justice system.
Interests of justice must also account for the grievances and wishes of the litigants. Litigants come to the Courts with certain expectations, which aside from quick and inexpensive disposal of the case also include availing the remedies of their choice, a certain quality of adjudications, a fair trial etc. The current evolving practices of mandatory ADR are said to be disruptive in the realization of such expectations. There have been growing sentiments that compulsory ADR requirements are a barrier towards access to courts. The England and Wales Court of Appeal in the Halsey v. Milton Keynes Gen. Hospital held that compulsory mediation violated Article 6 of the European Convention of Human Rights, which provides for the right to a fair and public trial. Such a strict interpretation of the right to a fair trial is indeed faulty. The failure of a State to allow access to a Court or Tribunal does amount to a violation of human rights unless such limitations are based on domestic legislation are necessary to pursue a legitimate aim such as the proper administration of justice,[1] and doesn’t impair the essence of the right.[2] Thus, a state providing for mandatory ADR to resolve a dispute is not in violation of human rights. Governments have the authority to impose conditions on bringing cases before the Court for the greater interests of justice, which may include providing inexpensive and speedy pre-trial ADR procedures which don’t prejudice any rights of the parties. Some disputes are inherent of such nature that the inordinate length and excessive cost of the legal procedure are out of proportion to the financial value of the case, thus necessitating ADR. Therefore, mandatory ADR provisions do not restrict access to courts, but rather work as a qualifying stage, for the greater interests of justice.
On the other hand, some courts, being ‘over-enthusiastic’ about the ADR mechanisms, have tried to force it upon the litigants. For example, the Code of Civil Procedure, 1908 makes it mandatory for the Courts to refer the dispute to mediation after the issues are framed for settlement of disputes. This view is in resonance with the attitude of different courts in various jurisdictions surrounding the ADR. The U.S. Court of Appeals in In re Atlantic Pipe Corp., held that a federal trial Court has the inherent authority to order mandatory mediation if it deems such as appropriate. Similarly, the England and Wales Court of Appeal in Pauline Lomax vs. Stuart Lomax, held that a judge-led early neutral evaluation under the Civil Procedure Rules didn’t require the consent of the parties. The Court was of the opinion that due to the absence of an express requirement for consent in the rules, the concerns of cost efficiency and speedy disposal are to be prioritized. In Dunnett vs. Railtrack Plc, the Court went as far as to hold that a winning party will lose its right to costs against the losing party due to its reluctance to participate in pre-trial ADR. While courts can force parties into mandatory ADR, if such discretion is conferred to them by the law, such an approach may not always be justified. One of the key factors behind favouring ADR mechanisms over the traditional justice system is that such a process allows the litigants, to reach an outcome, which is favourable to both sides. But, if the party themselves are reluctant to participate in such a process, forcing them into such, can hardly spawn an outcome that is preferable to both sides. Besides, party autonomy and empowerment, which are also considered some of the primary benefits of ADR,[3] are diminished if the parties are forced into the process.
During its deliberation in the Milton Keynes Gen. Hospital case, the Court stated that compelling parties to enter into a mandatory mediation process, to which they objected, may result in additional costs and additional time and may damage the perceived effectiveness of the ADR process. Thus, forcing ADR to reluctant parties may undo all the positives that are usually achieved from ADR. An adjudicatory process may leave both parties unhappy at its conclusion, but in ADR, where the parties are unwilling, the beginning of the process itself is unsatisfactory, thus moving towards a dissatisfactory end. Traditional Courts often leave the parties unsatisfied, because of the rigid remedies provided by such. But if the parties themselves want such remedies, then forcing them to find alternative remedies can hardly bring any benefit.
Therefore, though it is an exaggeration to identify mandatory ADR as a human rights violation, indiscriminate use of such may undermine justice and the process itself. Both governments and courts shouldn’t consider ADR as a ‘silver bullet’ for all cases. Such size fits all approach may prove to be an impediment towards ensuring justice. Instead of forcing the parties to resort to ADR, the judges should rather explore the reasons for the parties’ resistance towards ADR.
[1] UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32, 23 August 2007, para 18.
[2] See for e.g. Ashingdane v United Kingdom, Judgment (Merits), Case No 14/1983/70/106, App No 8225/78 (A/93); Benthem v Netherlands, Merits and just satisfaction, App No 8848/80, A/97.<https://www.stradalex.com/en/sl_src_publ_jur_int/document/echr_8225-78>; <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjq2sL1iOD8AhXi6nMBHYJcBmEQFnoECB0QAQ&url=https%3A%2F%2Fhudoc.echr.coe.int%2Fapp%2Fconversion%2Fdocx%2F%3Flibrary%3DECHR%26id%3D001-57436%26filename%3DCASE%2520OF%2520BENTHEM%2520v.%2520THE%2520NETHERLANDS.docx%26logEvent%3DFalse&usg=AOvVaw0OdM55_L2u9STxDZql_Owz>
[3] See Robert A. Baruch Bush, ‘Efficiency and Protection, or Empowerment and Recognition? The Mediator’s Role and Ethical Standards in Mediation’ [1989] 41 University of Florida Law Review 253. <https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=2454&context=flr>
