Why ADR can be important in litigation

ADR (Alternative Dispute Resolution) is something that the English Courts tend to encourage in the process of litigation. Normally, at least in the Commercial Court, the parties will be required to confirm by the time of the Case Management Conference what steps they have taken to resolve the matter by way of ADR.

In the case of Fitzroy Robinson -v- Mentmore Towers [2009] EWHC 1552 (TCC), Coulson J highlighted two reasons why this can be a Good Thing.

First, he pointed to the expected narrowing of issues that ADR would most probably have brought about:

In its absence, the parties adopted diametrically opposed positions in the run-up to the trial. The distance between them only began to lessen at the start of the the trial itself. The best example of this concerned the Defendants’ case for rectification… Once the real issue became apparent, the Defendants effectively abandoned their rectification claim at the start of the trial, and sought instead to argue that, on the true construction of the Contracts, FRL were not entitled to the monthly instalments without adjustment. That argument was not only a better and more realistic submission in all the circumstances, but it should and would have become apparent to the Defendants much earlier if the parties had undertaken ADR [my emphasis].

Secondly, he pointed to the black and white allegations of dishonesty in the case, about which there was no room for havering or ambiguity — either the Claimant was lying or the Defendant was.

The nature of the allegations involving Mr Blake and Mr Thompson leaves no room for ‘fudge’; in relation to a number of the key elements of the story, everyone agrees that one or other man must not be telling the truth. It seems a pity that the parties were not able even to attempt to resolve their differences by way of ADR, so as to avoid my findings on these issues being made in a public Judgment [again, my emphasis].

In other words, ADR might well have avoided some rather disagreeable, and damaging, washing of dirty laundry in public.

So the next time you have to address the question of ADR, take 30 minutes or so think about the circumstances of the case and all the ramifications around it and see whether ADR might be more than a mere formality to be ticked off as ‘considered and not appropriate in the circumstances’ on the CMC check-sheet.