Should court rules encourage the use of ADR?

The Scottish courts have been subject to a wide ranging review with the "Scottish Civil Courts Review" (the "Gill Review") in September 2009. Since the Gill Review was published it has been subject to comment and analysis by many individuals and organisations, responding to the wide-ranging recommendations put forward. The latest response comes from the Civil Justice Advisory Group ("CJAG") who published their report titled "Ensuring effective access to the appropriate and affordable dispute resolution" (the "Report") on 18 January 2011. We have been looking at the recommendations made by the CJAG.
 
The increased popularity of alternative dispute resolution ("ADR"), no doubt fuelled in part by the time and expense incurred in traditional court process, has been considered by both the Gill Review and the response of CJAG. While there seems to be growing recognition of the potential benefits of ADR, there remains a lack of awareness among the public of its benefits, and confusion within the at least the Scottish judiciary as to where it fits within the current system. This is not an exclusively Scottish issue, the EU have recently published a consultation paper on the role of ADR in commercial disputes. It is recognised that ADR has an important role to play in a modern legal system; however there is no consensus on what that role should be.
 
It is widely recognised that forms of ADR, such as mediation, are most likely to succeed where both parties enter the process willingly and with a view to reaching a settlement. With this in mind, the recommendation of CJAG that court rules should be introduced to encourage the use of ADR could be viewed as counterproductive.
 
The Gill Review recommended that a mediation service be available for claims under £5,000, but did not consider that court rules should be amended to encourage ADR. It should be noted that the 'encouragement' referred to was that outlined by the Sheriff Court Rules Council in 2007, namely that a parties refusal to engage in ADR would become a matter for consideration in any award of expenses. This, of course, is the position in England where there has been considerable discussion and case law around the benefits of mediation.
 
The English experience shows that the sanction of costs is used rarely, but the threat of the sanction is usually enough to persuade even the most reluctant of litigants to "give it ago". Many are quickly surprised by how user friendly, swift and effective mediation can be. So court rules that encourage the use of ADR can only be a good thing.
 
What is clear is that court time should be reserved for those disputes that cannot readily be resolved by other means. The court should be seen as a last resort and, where parties are well advised, the alternatives will be explained and the potential benefits made clear so that the correct path can be chosen.