The future of ADR and its likely impact on Court of Protection disputes

The team considers the future of Alternative Dispute Resolution in general litigation and its potential impact on Court of Protection disputes.

Most people would consider through an objective eye that any dispute, from a £5million commercial dispute to a £200.00 dispute over a cancelled flight, is capable of resolution outside of Court proceedings. There is not a Court in England and Wales that thinks any differently and indeed the premise of every pre-action protocol is for the parties to try to resolve issues without issuing proceedings.

It is often considered that the word ‘alternative’ could be removed from the wording of Alternative Dispute Resolution (“ADR”) as dispute resolution is, in reality, part of the process for any litigation practitioner.

There looks set to be a change in the use of ADR with the Courts likely to have authority to order it in litigious disputes from this year rather than it being a mere expectation of the parties. I consider this to be a good thing and may compel determined litigants to reconsider just how determined they might be.

ADR is also essential and must be considered with any case; the Court expects it. It offers an alternative to the gamble of litigation where one party, no matter what they might think, will always lose. It destroys relationships whereas mediation, as one of the main forms of ADR, for instance, offers an opportunity for parties to have their say and resolve matters in a far less stressful forum. It can also in some circumstances bring parties together and can offers solutions and compromises no Court could otherwise order in make in making a ‘once and for all’ decision after lengthy proceedings in respect of a particular dispute. It is also worth noting that mediation cannot be appealed.

To use another example, offers to settle and CPR Part 36 should not be an afterthought. Part 36 is not just designed to effectively ‘insure’ any Part 36 offer within proceedings and to ensure that offer must be considered by the Court when it comes to costs: it is a tool designed to prevent matters reaching trail in the first place with the costs consequences the rejecting party may face because of their rejection a Part 36 offer.

Indeed, it is clear the Courts value mediation above all else and this is often encouraged by the Court at an early stage. Judges, so far as possible, do not like to judge. Judgements take time and Judges do not like to be appealed.

ADR is far more commonly used within general litigation, outside of the Court of Protection realm, for instance with contested probate or divorce proceedings.

I sometimes think it a pity that some litigation elements present in other areas, are not available within the Court of Protection forum. A notable difference would be the wide range of opportunities the civil procedure rules create when compared with the far more limited scope of the Court of Protection Rules. The awareness of mediation, for example, is generally limited and disputes are often brought by litigants in person who would not think to consider mediation or other forms of ADR.

However, that is not to say that Court of Protection proceedings are ‘catching up’ with other forms of litigation or are behind those in any way. Far from it; there are different rules for a reason, not least because of the overriding objective to those rules, the Mental Capacity Act 2005, and a primary focus to consider a protected party (“P”)’s best interests, rather than those of any other parties.

While the Court of Protection will, naturally, go its own way in that regard, I suspect the new general focus on ADR may spill into Court of Protection disputes, with more of a focus on ADR than ever before as a result. I have recently written an article specifically in relation to mediation within the Court of Protection.

Recent specific Court of Protection developments have also been encouraging. An evaluation of mediation in the Court of Protection (an independent evaluation of a practitioner-led Court of Protection scheme commenced in October 2019), published in September 2022 has thrown up some encouraging results (I have recently had the privilege of discussing the recent evaluation with the chair of that scheme and a podcast of that discussion will be available shortly).

For instance, 93.33% of participants in the mediations analysed by that publication indicated that they were extremely satisfied with their opportunity to participate in the scheme, with 89.47% also indicating that agreement was reached at mediation.

These kinds of figures and the success of this recent evaluation and the future for ADR in contested Court of Protection disputes looks promising.

The first question raised by a Judge in any Court of Protection dispute I have recently dealt with is always whether the parties had the chance to consider resolving their issues. Parties’ representatives seem more willing to consider a round table meeting or other informal discussion about the issues their respective clients have with a view to resolving such issues without the need for further Court involvement. While this will not always be the case and matters will inevitably be put before the Court, I suspect that a higher proportion of cases will now consider ADR from the outset.

It only makes sense, therefore, for the Court of Protection to one day follow a new insistence, where it is appropriate to do so, that ADR be considered, just as general litigation looks set to do.

I can only see this as a good thing. If ADR becomes more prevalent in practice, this will save P and those party to her dispute (often her relatives) significant time and money, stress and free up already limited Court of Protection time and resources to consider such disputes.

It will therefore be interesting to see the future for ADR not only in the various usual forums, but also within the Court of Protection.