Litigation, compromise and negotiation don't always sit comfortably together. Often clients want their day in court (or at least think they do) and cannot be persuaded otherwise.
Experience shows that their appetite for a fight often diminishes the more invoices they receive from their lawyer.
I am a strong proponent of alternative dispute resolution (ADR), particularly mediation. Even where parties are entrenched, mediation can help break down the barriers preventing a pragmatic or commercial resolution.
However, would I go as far as to say ADR should be compulsory? Probably not.
At the heart of ADR is the fact that it is a voluntary process. In order for it to succeed parties require to enter the process with a genuine intention to try and resolve matters. If it becomes simply a tick box exercise to allow a case to move to the next step (ie. court) we risk compromising the underlying rationale of ADR, which in turn risks undermining the process as a whole.
These are the issues a consultation on the Mediation Bill and a report from Scottish Mediation are currently grappling with. No doubt there will be strong views either way, so watch this space.
Embedding ADR elsewhere in the civil justice system raises fundamental issues: around human rights, the level of encouragement or compulsion, cost, the types of cases suitable for ADR, the role of solicitors and the deployment of technology. Ultimately, the question is whether this approach can improve access to justice for people, and provide fair, just and effective outcomes.