With ADR and a push for more mediation, in particular, taking a larger role in resolving disputes in Europe could a British exit from the European Union speed up the need for a greater reliance on ADR.
While some it means there is definitely a need and ADR should increase as a way to solve what are likely to now become cross-border disputes, many of the same people are skeptical about whether it can work in practice.
“I think that as legal relations between the UK and EU are unwound (and there is a range of ways this might be achieved), we will inevitably be left with a more complex environment for cross-border disputes, including in relation to the recognition and enforcement of judgments.” said Herbert Smith Freehills partner Alexander Oddy.
Oddy, a London-based ADR specialist was instrumental in putting together the new mediation guide for Europe, which was recently released by CPR Institute for Conflict Prevention & Resolution.
He said before the British referendum that in common law jurisdictions such as in England and Wales the time taken for resolution matters which can be somewhat quicker but the cost of dispute resolution is materially higher than in the civil law jurisdictions. The costs then provide their own incentive for parties to resolve at least some matters.
“The Member States in a variety of ways implemented the EU Mediation Directive of 2008 in 2011,” he said. “Some Member States, like the UK, opted for the minimum requirements so as to apply to cross-border disputes only where disputing parties are in different Member States. Other jurisdictions like the Netherlands, France, Germany and Italy implemented the directive to apply to cross-border and domestic disputes. Anecdotally, however, the adoption of the Mediation Directive to apply to domestic disputes in those jurisdictions has not necessarily had a profound effect on behavior patterns in terms of ADR use.”
With recent developments he adds, “as a result there ought to be yet greater value put on ADR processes that facilitate consensual negotiated outcomes to mitigate risk and uncertainty.
“But given the wide variations in the adoption of ADR across the EU, it would be a brave commentator to predict that this will in fact happen in practice.”
