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"A hurdle to jump" - Alternative dispute resolution has an unfairly negative public image, but what can be done about it?

• Sep 14, 2022
• Latest Journal

by Alasdair McDowell, Associate - www.stevens-bolton.com

The Ministry of Justice (MoJ) published a summary of the responses it received to its Call for Evidence on Dispute Resolution in England and Wales (the Call for Evidence) in March this year. The responses make for revealing reading.

Introduction
The MoJ elicited views from an array of sources including the judiciary, lawyers, academics and members of the public on a variety of aspects of alternative dispute resolution: a term encompassing all methods of settling a dispute otherwise than through the courts (which the Call for Evidence itself refers to merely as “dispute resolution”, as this article will also), examples of which include mediation and settling through correspondence. Many of the responses to questions regarding the efficacy of dispute resolution were positive. However, the gulf between public and professional perception is wide and reflects the reality that significant work is needed to convince the public that dispute resolution is as effective in solving disputes as litigation.

Polarised views
Responses to the Call for Evidence focussed on the well-known positives of dispute resolution: the cost savings when compared to litigation; the speed with which settlement can be achieved; and dispute resolution’s ability to facilitate outcomes that allowed parties to maintain their commercial relationship were all cited as benefits. Additionally, some lesser-known benefits were mentioned, such as the ability for dispute resolution to create “sustainable” and “creative” solutions to disputes. It was also suggested that parties reaching conclusions negotiated between themselves meant they were more invested in ensuring that they complied with the agreed terms.

However, sources also revealed that the parties themselves often considered dispute resolution to be a “hurdle to jump”, or even “a form of capitulation which signals admission or weakness”. Some also felt that dispute resolution was little more than a “tick-box” exercise and another bar to overcome in order to access justice. The contrast between the realities of dispute resolution and its public perception is striking.

Are lawyers to blame?
Contained amongst the responses were possible reasons for the negative perception of dispute resolution. According to some sources, lawyers themselves were not doing enough to promote dispute resolution, either due to an interest in pursuing lengthy litigation, or by using language in inter solicitor correspondence that exacerbated existing ill feeling and created a further impediment to parties engaging in dispute resolution. Perhaps more tellingly, the report also noted “a strong association made by parties between…court and justice and…beliefs regarding the need to have one’s 'day in court'”. A consistent theme, however, was the lack of knowledge of the dispute resolution systems available and awareness of their operation and effectiveness on the part of litigants.

Respondent-proposed solutions
Respondents to the Call for Evidence were not without suggestions for improving the public’s perception. Principle among the suggestions was providing clear guidance and information to the public on dispute resolution generally. Another interesting suggestion was that dispute resolution should be made available at a number of critical points in the litigation process rather than only once, given that the position can change as a matter proceeds.

Whether the perceived weaknesses of dispute resolution could be overcome by making dispute resolution mandatory was subject to mixed views. On the one hand, respondents felt that it might liberate the use of dispute resolution from the restraining perception that it was a sign of weakness. On the other hand, it was thought to be contrary to its fundamentally voluntary nature with the effect that parties were less likely properly to engage in the process if forced to use it.  

Comment
There is increasing focus amongst the judiciary on guiding parties towards resolving disputes outside the court system. This is particularly true for lower value disputes which can take up disproportionately large quantities of scarce court time. Legal professionals and the judiciary are already fully aware of the benefits of dispute resolution, but the public is apparently less keen, and it is not difficult to understand why. Whilst the public has been subject to the concept of court-based justice for hundreds of years, they are naturally less familiar with the relatively new, confidential world of dispute resolution.

Public perceptions will shift with the increasing public knowledge of, exposure to and experience of dispute resolution, and it looks increasingly likely that compulsory dispute resolution for certain types of dispute will be introduced before too long. The Civil Justice Committee have already concluded that compulsory dispute resolution would be lawful in certain circumstances. However, it is much less certain that it would have the effect of hastening the change of public perception for the better, or whether it would convince litigating parties that there is a meaningful alternative to having their “day in court”.