A new approach to court hearings and ADR?

The COVID-19 pandemic has forced many industries, including the legal sector, to embrace technology. For several months, most hearings, tribunals and mediations were migrated online. Many cases and mediations are once again taking place again in person, but a new blended approach, with some people physically attending in court and others joining remotely, is emerging.

The Civil Justice Council (“CJC”) has also recently reported on whether alternative dispute resolution (“ADR”) should become mandatory.  We discuss these topics below.

Is compulsory ADR legal?
In January 2021, the Master of the Rolls asked the CJC to report on the legality and desirability of compulsory ADR. The CJC responded earlier this month issuing the following key conclusions:

—  Mandatory ADR is compatible with Article 6 of the European Convention on Human Rights and is therefore lawful.

—  ADR can be made compulsory, subject to a number of factors (including outlining the types of claims and situations in which compulsory ADR would be appropriate and effective).

—  ADR should no longer be viewed as an “alternative” but as an integral part of the dispute resolution process, with the focus on “resolution” and not “dispute”.

What is a “blended approach” to hearings and mediations?
Last summer, we shared our experience of technology for virtual hearings and mediations. Whilst the courts have reopened and many cases are once again taking place in person, there is a growing trend to consider and/or adopt a blended approach. This involves some people being ordered to attend a hearing in person and others joining remotely.

Our Property Disputes team was involved in a tribunal hearing earlier this month adopting this format.  This involved the main instructing solicitor, counsel and one witness attending in person for each party, whilst other key lawyers and interested parties (leaseholders in this case) attended remotely. It worked particularly well for this case as it involved group litigation and there was insufficient space to allow everyone to ‘attend’ the hearing.

The same approach is being trialled for mediations. This could be a particularly attractive option for cross-border disputes or where it may be useful to have certain parties or individuals, such as a finance director, attend selected parts of the mediation only.

The blended approach offers potential benefits in terms of time and costs savings.  It also has the potential to increase the use of mediations in multi-jurisdictional disputes.

Comment
We believe that blended hearings and mediations will become a legacy of the pandemic, and will offer flexibility to all involved in litigation in the post-pandemic world. We will also keep you updated on plans to make ADR compulsory and what these may mean for any disputes.