Solicitors’ “vested interests in pursuing lengthy litigation” are holding back the take-up of alternative dispute resolution (ADR), the government has been told.
The “adversarial language” used by lawyers was also viewed by some “to aggravate tensions between parties”.
The summary of responses to the Ministry of Justice’s (MoJ) call for evidence on dispute resolution also recorded widespread support for an accreditation scheme for ADR providers, with some going further and urging mandatory regulation for practitioners.
The call for evidence said that, with too many cases still unnecessarily ending up in the courts, more needed to be done to increase uptake of “less adversarial” options.
The MoJ received 193 responses, while 78 people took part in roundtables. It said the role played by solicitors and judges in “successfully encouraging” parties to engage with ADR was a key theme.
“Some respondents felt that, despite court protocols recommending that solicitors make an early referral to mediation, owing to their vested interests in pursuing lengthy litigation, referrals of clients by solicitors did not regularly take place.
“The adversarial language used by lawyers was also viewed by some to aggravate tensions between parties and provide an additional barrier to engagement with dispute resolution.
“In parallel to this, many respondents felt that the courts and judiciary could do significantly more to endorse and encourage parties to engage with dispute resolution.”
Costs sanctions for unreasonable refusals to engage in dispute resolution were seen as a “highly effective and under-utilised tool”, especially in commercial cases.
Along with “more rigorous sanctions for non-compliance”, it was suggested that courts could use “softer incentives”, such as improved and more visible guidance.
Although saving money was frequently cited as an advantage of ADR, for others “the value of a dispute and relatively cheap court fees” compared with the cost of undertaking ADR could reduce uptake.
On regulation, although the “general lack of regulation of dispute resolution providers” in comparison with the legal profession was seen to “create confusion”, the MoJ was “not provided with evidence of widespread professional misconduct”.
However, many respondents supported a requirement for accreditation “and some went further, calling for the mandatory regulation of practitioners in order to improve standards and accountability”.
Many dispute resolution providers said that, if ADR became compulsory, a greater degree of regulation would be needed.
“Some respondents felt that legislation would enable a professionalisation of the sector that would be helpful.
“Others were not persuaded and expressed concerns that introducing legislative regulation would damage supply by erecting barriers to entry and produce a chilling effect on innovation in the sector.”
The MoJ said views were “mixed” on the issue of whether there should be compulsory ADR. Most of those in favour came from the consumer and public services sector, insurers and mediators. “Unsupportive responses” came largely from the legal profession, academia and the advice sector.
“Some representatives of the legal profession also recognised a need for greater compulsion, including the Law Society, which promoted the use of early neutral evaluation.”
The most widespread and substantial concerns related to fears that compulsion could “prevent cases which involved safeguarding issues or significant power imbalances being managed effectively, particularly in family matters, and may lead to victims being placed in positions of danger, as well as unfair outcomes”.
A number of respondents supported compelling both parties to family disputes to attend a mediation information and assessment meeting, with some suggesting extending the concept across other jurisdictions.
Several also highlighted that the “complexity” of the dispute resolution landscape was a significant barrier for vulnerable parties, who may need or prefer to access legal support.
“Some respondents also cited lack of diversity within the dispute resolution profession as a disincentive for engagement.”
The MoJ said the information gathered from the call for evidence would inform its developing work on “how to utilise dispute resolution processes to deliver swifter, more cost-effective and more consensual access to justice”.
But it did not set out a timetable for when any policy proposals might be made.