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COVID-19 and Beyond – the rise of Alternative Dispute Resolution (Part 1)

In recent times, it has been the case in England and Wales that the use of Alternative Dispute Resolution (“ADR”) – i.e. a way of resolving a dispute without recourse to a Court or Tribunal – has been encouraged, but has not been mandatory.  Proposals have been mooted for a couple of years about the possibility of including Mediation (the most well-known and arguably, on a case by case basis, most effective) as a mandatory step in proceedings. 

For now, that is not the case and the Court’s powers are limited to, amongst other things,

  1. penalising a party in costs if it considers them to have unreasonably refused to mediate, or they have adopted an unreasonable stance at Mediation; or

  2. making an order compelling the parties to engage in ADR (the so-called “Ungley Order”).

The COVID-19 pandemic has had a profound impact on the day to day functionality of the Courts and Tribunals System.  It continues to adopt something akin to ‘battlefield triage’ in assessing the work that must be done and that which could be done, if resources permit.  Broadly speaking, both categories of work relate to ‘urgent’ work, either in existing cases or new cases.

As businesses have mothballed in an attempt to ensure their post-COVID-19 viability, so the demand for commencing ‘routine claims’ has diminished. 

Unsurprisingly, concerns are already being raised about the Court’s ability to cope once the proverbial elastic band is released, and the surge of pent-up demand is released.  Among the most vocal and authoritative proponents of the need for the Court System to prepare for this surge is Lord Neuberger, the former President of the Supreme Court. 

A Concept Note was released by the British Institute of International and Comparative Law ("BIIC") on 27 April 2020 entitled “Breathing Space – a Concept Note on the effect of the pandemic on commercial contracts. 

Lord Neuberger, who is the chair of the BIIC, commented in the accompanying press release that “the legal world has a duty to the rest of the world to prepare itself".  Sir William Blair, a former Judge of the London Commercial Court, stressed that “new thinking is going to be required if the law is to play its full part in getting international commerce back on its feet - within the principle of legal certainty, space need to be found for renegotiation, and if the contract is no longer viable, equitable solutions".

Whilst the Concept Note deals specifically with the potential impact of the COVID-19 pandemic on commercial contracts, the observations of the learned commentators are of wider application.

The surge in demand for access to justice post-COVID-19 will create inevitable strains on the Court System, as years of cut-backs in funding take their toll.  For practitioners, this will mean the need to evolve to fully embrace the innovative and collaborative processes that COVID-19 has required, and will make the use of ADR all the more important.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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