Terms of Reference
Ø       To undertake activities relating to support for the use of ADR in the Civil Justice system Ø       To promote such conferences, seminars and other meetings as seem appropriate and can be resourced designed to develop the use of ADR in the Civil Justice system Ø       To provide a forum for the consideration by the judiciary and ADR providers of new initiatives relating to the use of ADR Ø       To provide advice to Government and other agencies, through the Civil Justice Council, about developments relating to ADR which the Committee thinks should be advanced Ø       To draft responses to papers coming from Government both in the UK and Europe and from other bodies about the development of ADR Ø       To provide assistance to Government and other bodies about issues – including training – relating to the use of ADR

As indicated in last year’s Annual Report, membership of the ADR Committee has changed dramatically. We have welcomed as new members: HH Judge Paul Collins; Colin Stutt from the Legal Service Commission; Stephen Ruttle QC and Michel Kapellitis QC, both involved in the Bar’s ADR Committee; and Professor Geraint Howells from the University of Sheffield.

The Committee has in recent months been engaged in three major initiatives:

1. At the invitation of the Civil Procedure Rule Committee, it has been examining whether – four years on from the introduction of the CPR – the rules and Practice Directions relating to ADR need revision. Given that there have been important developments in the law – particularly decisions of the Court of Appeal – the Committee has concluded that modest changes would be desirable. A memorandum setting out its views will shortly be forwarded to the Rule Committee. (It will also be published on the CJC website.)

2. It has returned to the question of whether use of ADR should be mandatory. This is an issue that divides those who provide ADR services. The committee has considered a paper on an extremely important initiative that took place in Ontario a couple of years ago. There a pilot project was launched under which an ‘opt-out’ ADR scheme was made a requirement for all defended civil actions in Toronto and Ontario. (Details are on the Attorney-General for Ontario’s website: http://www.attorneygeneral.jus.gov.on.ca/) The essence of the scheme was that parties were required to try mediation unless they could persuade a case management judge that it would not be appropriate in the particular case. The mediation was time limited (to 3 hours) and also cost-limited.

This pilot project was evaluated very thoroughly by an independent research team. The results of the evaluation subsequently led the Ontario Attorney-General to convert the pilot scheme into a permanent one.

The ADR Committee has considered this development and has unanimously decided to recommend that the Secretary of State should consider introducing a similar experiment in England and Wales. The Committee is hopeful of a positive response to this proposal. Indeed the scheme was launched at Central London County Court in March 2004.

3.  The ADR Committee planned a major Forum on the development of ADR in the County Court. It was held towards the end of 2003. It successfully brought together representatives from courts where schemes are running with their colleagues who would be interested in starting a scheme but have yet to do so.

The forum examined what needs to be done to get a scheme off the ground. Those with experience of doing this shared that experience with those who do not have it. For the longer term, the forum may become the basis for a short note of guidance on how to establish new court-based ADR schemes.

A note of the meeting will be published on the CJC website.

In addition to these specific initiatives, the Committee seeks to keep abreast of developments on ADR, both in England and Wales, and abroad, particularly in Europe.

One very significant development has been the adoption, by the Department  for Constitutional Affairs, of Public Service Agreement 3 which was previously the responsibility of the former Lord Chancellor’s Department.  All main Whitehall departments have a Public Service Agreement with the Treasury which comprise a number of high level targets which are set as part of Spending Review settlements. PSA 3 focuses in particular on the reduction in the number of cases going through the civil courts. The purpose behind this target is to ensure that disputes are resolved quickly, effectively and in a manner and at a cost proportionate to the issue at stake, without compromising access to justice.  It is Government policy that the courts should be the dispute resolution method of last resort. This has given a new emphasis to the potential importance of ADR as a mechanism for diverting at least some cases away from the courts.

Martin Partington

Chair