Mediation in the civil justice system

08/04/2019

A recent pan-European analysis examines the referral of cases to ADR.

The Courts and ADR

William Aylmer, Chairman of the Alternative Dispute Resolution (ADR) Committee, has reviewed a joint Statement of the European Law Institute (ELI) and the European Network of Councils for the Judiciary (ENCJ), published in 2018.

Recommendations and further study

The statement makes recommendations for how courts of Member States deal with referral of cases to ADR. It refers to a patchwork quilt of ADR provision across the EU, from mandatory pre-litigation ADR in one, to entirely voluntary mediation in another. Concern is expressed that myriad processes may exist that are alien to foreign nationals or that ADR may develop in a way that intrudes on legitimate judicial function of Member States, both exacerbated by inconsistencies between existing EU instruments. Definitions may be conflicting and confusing and distinctions between mandatory and voluntary, binding and non-binding, consensual and non-consensual, are problematic.

The statement proposes that further study is necessary of:

  • The different ways in which ADR can be made mandatory.
  • The advantages and disadvantages of mandatory ADR.

It suggests how courts should act in referring cases to ADR. It does not deal with the legislative or policy issues concerning when and how Member States should or might provide in their laws for mandatory references to one or more ADR processes. It makes statements of best EU practice in relation to the approach that courts should adopt in interacting with ADR processes and the best EU models that could be developed for coherent access to dispute resolution processes.

Courts’ approach to interaction with ADR processes

The statement lists the principles it recommends that courts should have regard to in encouraging litigants to use ADR, the applicable standards of such processes and principles regarding the preservation of parties’ rights of access to the courts and the formal justice administered by them.

The statement is based on the principles of fairness, trust and access to justice. When courts refer disputes to ADR, they must have regard to certain principles to ensure that parties:

  • Can trust the ADR provider.
  • Can be assured of a fair and just outcome.
  • Will not suffer an impairment of rights in respect of limitation of enforcement.

eNewsletters

This article originally appeared in the March 2019 Law Society eZine. For more information, or to subscribe, see eNewsletters.