Originally from Alternatives to the High Cost of Litigation

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Alternative dispute resolution has been seen in England as a consensual process since the 1998 Civil Procedure Rules gave ADR much greater prominence. Neither a party nor the court could impose an ADR process, although clear judicial “encouragement” to parties was not unknown.

This landscape, however, could be on the cusp of substantial change as the Court of Appeal has given new life to a less frequently used ADR tool, early neutral evaluation, or ENE. As a result, ADR users and practitioners have had opened up to them the opportunity to have their counterparty compelled to engage in judge-led ADR that could generate real savings in time and costs.

In Lomax v. Lomax, [2019] EWCA Civ 1467 (6 August 2019) (available at http://bit.ly/2MmUbMH), the English Court of Appeal has held that a judge can refer the parties to ADR even in absence of one or both parties’ consent.