The Rise of Alternative Dispute Resolution in Light of Improving Access to Justice

In 1997, Lord Woolf recommended wide-ranging reforms to the UK Civil Justice System. The reforms were proposed within his Access to Justice Report in response to the abundance of criticism surrounding the system at the time. The unfair, inaccessible, and oppressive nature of the adversarial system has enabled the use of ADR methods to grow in the attempt to promote access to justice for ordinary people.

The issues identified by Lord Woolf related to costs, delays and the complexities that were apparent within the civil justice system. Of his proposed changes, it was emphasised that there should be an affordable cost for litigation, allowing for those of lower financial ability to pursue a lawsuit or an equal alternative. The process was further outlined to become less complex and ensure swift delivery of justice through avoiding tedious court procedures.

Lord Woolf’s reforms, followed by the implementation of the Civil Procedure Rules 1998 (which put his suggestions into practice) and Lord Jackson’s cost reforms in 2013, provided an arguably all-rounded approach to increasing the awareness and enforcement of ADR by the courts where appropriate and enabling wider access to justice. 

Mediation

One of the most popular methods of ADR is mediation, a negotiation procedure whereby an independent third-party (mediator) will facilitate discussion between parties until a compromise is reached. Mediation is a popular method in the fields of commercial and family disputes as its flexibility allows for the confidential, cheap, and accelerated means of settling the conflict. This method is preferable as if the parties decide not to settle upon what is put forward by the mediator, they face having a decision imposed by a judge and may escalate to arbitration or litigation.

The Rise of Mediation

The Centre for Effective Dispute Resolution (CEDR), in 2016, reported that 41% of mediators and 43% of lawyers had seen an increase in the use of mediation following the Jackson reforms in 2013. On the basis of mediators’ reported caseloads, it was estimated the civil and commercial mediation market before the COVID-19 pandemic was in the order of 16,500 cases per annum in England and Wales, this being an increase of over 38% than estimated in 2018. Further reported in their Ninth mediation Audit in 2021, the overall success rate of mediation has an aggregate settlement rate of 93%, demonstrating that the reforms are increasingly fulfilling the initial goals set out almost 30 years ago.

Mediation and the Impact of COVID-19

During the first six months of the pandemic, 71% of mediators switched to practicing online, with many respondents outlining the convenience, increased control and flexibility of the process taking place virtually. The CEDR’s 2021 statistics for the future impact of online mediation (Figure 1) outline that this increased level in mediation activity comes at the expense of settlement rates.

Figure 1 - based on the responses of 361 mediators based in the UK

Regarding access to justice, it seems that the ‘access’ is surging amongst disputants, but contrastingly, the successful achievement of ‘justice’ on a virtual platform remains outside the grasp of ADR.

How Far Does Mediation as an Alternative Procedure truly go in its Attempt to Improve Access to Justice?

The mediator’s neutrality and responsibility to ensure the process is procedurally fair is essential to improving the access to justice that ADR sets out to promote. The role of preventing intimidating or abusive behaviour satisfies a fair settlement reached between parties as their relative bargaining power is made equal through the facilitated discussion. The mere role of the mediator is to allow the parties to understand their choices whilst not imposing subjective values on them, preventing a coercive agreement and giving parties the freedom to refuse the settlement and go to court as a final recourse.

It has been made evident that a large burden rests upon the courts to further the growth in the use of ADR methods, educating ordinary people on how it could be appropriate and most effective for all concerned. Despite the mandatory nature of ADR in particular disputes, the maintenance of an accessible mechanism that is encouraged by the court and the transparency of decision-making is crucial in ultimately allowing parties to explore the process as a legitimate delivery of justice.