K21.3. ADR as an adjunct to court
proceedings
| 629. |
Increasingly, ADR has
been seen as potentially a useful element in the civil justice system to be used in
appropriate cases as an alternative or adjunct to civil proceedings. Thus in setting out
the overriding objective, CPR 1.4(e) provides :- |
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"Active case
management includes ...... encouraging the parties to use an alternative dispute
resolution procedure if the court considers that appropriate and facilitating the use of
such procedure." |
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| 630. |
In Hong Kong, whether a
court-annexed mediation scheme should be introduced was explored as long ago as in August
1993. A Committee chaired by Kaplan J reported on the question to the then Chief Justice.
The committee took a tentative view. It stated :- |
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"Whilst being
attracted to a compulsory mediation scheme the Committee is of the opinion that more
extensive consultation would be desirable before this is introduced." (Note 557) |
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| 631. |
Its immediate
recommendation was that litigants should be given information about "the benefits and
procedure of mediation" but that mediation should remain voluntary. (Note 558) For the longer term, it recommended that :- |
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"...... following
a much wider consultation, further consideration be given to the following:- |
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(i) |
The Court should have
power in all cases it thinks appropriate to order the parties to attend a mediation
procedure. |
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(ii) |
The Court should have
the power to refuse to set down cases they think may be amenable to mediation until after
mediation has been attempted. |
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(iii) |
The power referred to
in (ii) above should be coercive i.e. on the application of one party despite the
opposition of the other(s)." (Note
559) |
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| 632. |
The interest in making
ADR a part of the civil justice system rests on the potential benefits seen to flow from
its use in appropriate cases. It is often said that ADR can be simpler, cheaper and
quicker. It can be more flexible and custom-designed for the dispute in question. It can
be less antagonistic and less stressful than a court case and so less damaging to a
possible on-going relationship between the parties. |
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| 633. |
The Court Service
website of the Lord Chancellor's Department lists the following virtues of ADR :- |
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"The
settlement of disputes by means of ADR can: |
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(1) |
significantly help
litigants to save costs; |
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(2) |
save litigants the
delay of litigation in reaching finality in their disputes; |
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(3) |
enable litigants to
achieve settlement of their disputes while preserving their existing commercial
relationships and market reputation; |
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(4) |
provide litigants with
a wider range of solutions than those offered by litigation; and |
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(5) |
make a substantial
contribution to the more efficient use of judicial resources." |
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| 634 |
In its Discussion
Paper, The Lord Chancellor's Department explains the beneficial features of ADR as follows
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"...... Procedures
may be simpler, and closer to normal business activity. There may be less, or better
focused, paperwork. The work done in preparing disputes for the resolution process may be
less, or simpler. Parties may choose an arbitrator or mediator for special knowledge or
expertise. It may be possible to find earlier or more convenient dates for ADR than court
lists permit......" (Note
560) |
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"...... Procedures
and locations are usually much less formal, and less stressful for that reason alone.
Mediations, in particular, often start by giving the parties themselves the chance to tell
their own stories, and identify the issues important to them, in their own way. The
processes might be considered more constructive: rather than looking for weaknesses in the
other side's case, there is a greater concentration on what would constitute a mutually
satisfactory solution. Parties therefore review what is really important to them, and what
they are prepared to give up. Many ADR processes do not have the stark result of
litigation, with one party getting everything and the other nothing; they lead to a
settlement with benefits for both sides. Mediated settlements can also include elements
which could not form part of a court judgement, such as an apology or an agreed way to
handle any future disputes." (Note
561) |
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| 635. |
While evidence from
other jurisdictions lends support to some of these assertions, it is important not to
overstate the case for ADR. As Brown and Marriott state :- |
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"ADR assists with
the process of dispute resolution, but is not a panacea that will remedy all the ills,
actual or perceived, of litigation. Indeed, there are circumstances when ADR processes
would be inappropriate, or in which ADR forms, once commenced, might need to be
discontinued. Sometimes they should be employed only with the utmost circumspection. ADR
practitioners need to be alive to the cautions and reservations applicable to ADR
processes, so that they can be employed only when they are proper and appropriate." (Note 562) |
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| 636. |
Some cases will
obviously not be proper candidates for ADR at all or for the continuation of ADR where the
process has begun. Brown and Marriott (Note 563) include in this class, cases :- |
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raising constitutional
issues; |
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where rights are being
tested, establishing principles and precedents; |
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where a successful
invocation of ADR requires the parties to arrive at a contractual settlement, but where
one of the parties lacks legal capacity to contract (eg, because a minor or a patient); |
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where the power
imbalance between the parties is such that no fair agreement can be expected to result
from the process; and |
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where a party shows by
conduct that ADR is being abused to the prejudice of the other party, eg, where ADR is
being used as a fishing expedition to discover weaknesses in the other side's case or is
being used only as a delaying tactic, with no real interest in resolving the dispute. |
Notes
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