Alternative Dispute Resolution

Peter Mansfield is a solicitor in CMS Cameron McKenna's Bristol office. He is on the steering committee of CAP, the organisation responsible for drafting the Pre-Action Protocol for Professional Negligence Claims.

I was once a sceptic, but now I believe. Alternative Dispute Resolution is the new religion and the list of converts is lengthening. In 1996, the Commercial Court began to encourage its use. Then there was the Central London County Court pilot scheme. And now, of course, the use of ADR has become an integral part of the Woolf reforms. Like it or not, ADR is here to stay.

LCD Discussion Paper

Earlier this month the Lord Chancellors Department issued a discussion document on ADR (available on the LCD's website: www.open.gov.uk/lcd/). It is a document which anyone interested in ADR should read and should respond to.

The desire of the LCD is to "ensure that the full potential of ADR techniques is realised". In order to achieve this, the discussion paper sets out 76 questions on which the LCD are inviting responses by 25th February 2000. These responses will be funnelled back to the LCD and will be used "to develop this Government's policy towards ADR".

Issues on which they are inviting comments include:

• does ADR save time or money?
• should checklists be prepared to identify the most suitable form of dispute resolution in each case?
• should the Government create a national scheme of ADR?
• how can on-line dispute resolution services be encouraged?
• should judges provide an early neutral evaluation of a case?
• should the use of ADR be compelled?
• what should the sanctions be for unreasonably refusing ADR?
• should there be a code of practice for mediators?

As can be seen, the issues are wide-ranging and they will result in an overhaul of ADR in this country. If the insurance market wants to have an influence on the future of ADR (and therefore the future of litigation) it is essential that their views are forwarded to the LCD.

Market ADR Commitment

Question 32 of the discussion paper asks: "What would be effective ways for those in dispute, or those working on their behalf, such as insurance companies, to encourage [ADR]".

In the professional indemnity market, an important first step has already been taken to achieve this aim. Last Friday marked the first anniversary of the Market ADR Commitment (or MAC). This initiative was born from a desire amongst insurers to take full advantage of the benefits of ADR.

More than 30 insurers have now signed up to MAC and have therefore agreed to the statement that they "enthusiastically endorse the use of mediation and other forms of ADR." In doing so, insurers have shown themselves to be responding to the zeitgeist and, in many respects, are taking a lead.

Question 55 of the discussion paper raises the issue of "opt out" and "opt in" schemes. In the former, the assumption is that a party will use ADR unless they "opt out". ADR will, therefore, be the default option. In the latter, ADR will not be used unless the parties "opt in".

MAC has pioneered the "opt out" method and it has also been used in the draft pre-action protocol for professional negligence claims. It is possible that this may become the prevailing view.

Protocols

Which brings us onto question 44 of the discussion document: "do you think pre-action protocols should specifically require parties to consider ADR?" The Personal Injury protocol does not, but the Clinical Negligence protocol does.

In relation to the draft professional negligence pre-action protocol, the steering committee have taken the view that ADR is now so central to dispute resolution that it must be included in the protocol. We have adopted MAC's "opt out" approach.

The LCD are aware of at least 21 other protocols in draft form, many of which will impinge on the insurance market - debt recovery, defamation, intellectual property, judicial review, road traffic accidents, solicitors negligence, the technology and construction court and Year 2000. The approach to ADR in these protocols will have a major influence on the insurance industry.

The future

When used wisely, ADR is a fantastic weapon in the armoury of claims handlers. It is flexible, whereas litigation is not. It is conciliatory, whereas litigation is adversarial. Most importantly, in my experience and in the experience of my colleagues, it is successful.

The take up for ADR is still comparatively low. It seems that the agnostics still outnumber the believers. This will change, however, and the pressure to use ADR will only intensify. It therefore stands as a challenge to the insurance market and to insurance lawyers. But there is nothing to fear. ADR is the flexible friend which provides access to justice. It is time to believe.