A consultation has been launched "to consider the concerns that have arisen in Europe as a result of the exponential growth of numerous different forms of alternative dispute resolution".
The paper, entitled "The Relationship between Formal and Informal Justice: the Courts and Alternative Dispute Resolution", is a joint project by the The European Law Institute and the European Network of Councils for the Judiciary (the latter chaired by Sir Geoffrey Vos, Chancellor of the High Court).
The consultation's focus is on how the interface between courts and ADR processeses is working in Europe. It seeks views on whether identified concerns can be addressed by developing statements of best practice or models, to be followed by both courts and ADR providers when assessing what dispute resolution process should be adopted in a particular dispute.
The interface between courts and ADR processes is of course a key issue being discussed more globally in the ongoing Global Pound Conference (GPC) series, and it will be interesting to see how the data and commentary generated out of the GPC (following the final event in London in July 2017) compares to the conclusions from this consultation (the final report on which is planned for the end of 2017).
While acknowledging the undisputed benefits of disputes being diverted from court systems toward ADR, the paper identifies a number of "perceived or actual problems" that need to be borne in mind where there are multiple different systems of dispute resolution available. Those include a risk of disputants being denied access to justice and/or settling disputes without access to adequate legal advice, the risk of ADR being underused in some jurisdictions due to its voluntary nature or concerns as to quality assurance, and the risk of parties insufficiently understanding the ramifications of ADR processes recommended to (or imposed on) them.
As a potential means of addressing those concerns, the paper proposes the development of:
1. Statements of European best practice in relation to:
- the approach that courts and judges should adopt in interacting with all types of ADR processes – that is, a how should courts and judges behave when considering, requiring or recommending ADR? ; and
- the approach that those responsible for ADR processes should adopt in interacting with courts and judges – which may include considering the need for "an escape route" to a court-based procedure where a party feels that the ADR process has not achieved its objective.
2. Models for coherent access to dispute resolution procedures in respect of different types of dispute, towards which Member States may wish to progress.
The paper requests individual and collective responses by 13 March 2017.