Mandatory ADR

Mandatory ADR

MANDATORY ADR- Barriers, Incentives and Effectiveness
Introduction
Encouraging parties to explore settlement of their differences through ADR is a good thing. However, imposing mandatory ADR may not necessarily be. This essay will present the arguments for and against mandatory ADR. It will demonstrate that those factors that contribute to the advantages and disadvantages of mandatory ADR can also influence the overall effectiveness of mandatory ADR through creating incentives and reducing barriers to it. Mediation is arguably one of the most widely used of alternative dispute resolution processes, and many techniques share its characteristics. It is therefore on mandatory mediation that this paper will refer to.
It is recognised that without encouragement or even compulsion, few litigants will use ADR.   Voluntary participation is an important assumption of most ADR methods. There has been an ongoing debate of whether mandatory ADR makes a difference to the success or effectiveness of ADR. A key contributor to the success of mandatory ADR is the participation of the parties. This essay will argue that mandatory ADR will only be most effective if it is complemented with voluntary or consensual participation in the ADR process, or more specifically, if parties voluntarily participate in good faith and a common desire to resolve their dispute.
What is mandatory ADR?
Most Commonwealth courts and tribunals have a power to refer a matter to ADR. Referral can be both mandatory and compulsory. Referral can also be both discretionary and compulsory in that the referrer has a discretion to refer the dispute to ADR with or without the consent of the parties   or both mandatory and voluntary in that the disputes are referred to ADR but only with the consent of the parties.   The following table   outlines the options available.

REFERRER PARTIES

DISCRETIONARY REFERRAL â–º
Referrer may refer parties to ADR VOLUNTARY PARTICIPATION
Parties must consent to referral...