Courts around the United Kingdom, which have been partially closed due to the current COVID-19 pandemic, will face a significant increase in the backlog of new cases when they are eventually able to reopen. Even prior to COVID-19, it was clear that the court system lacked the required capacity to continue without significant change, having long struggled with issues of understaffing. Challenges exacerbated by COVID-19 have brought Alternative Dispute Resolution (ADR) to the fore. ADR disciplines are already encouraged by courts and may be the solution to ease the pressure on the struggling judicial system.
ADR refers to the numerous ways of resolving often commercial disputes outside of courts. It is facilitated through an impartial third party who encourages both parties to reach a consensual and equivalent compromise in order to settle their dispute. This is a more relaxed and person-orientated process compared to the bureaucracy and rigidness of litigation.
Two-thirds of dispute resolution solicitors believe the use of ADR could assist in the reduction of the court backlog by helping to improve the efficiency of the court system. As ADR is conducted outside of the court arena, it is not impacted by the backlog in the system, essentially bypassing arduous and lengthy litigation and allowing for disputes to be resolved without delay, and with significantly more flexibility.
ADR can take place online – an essential element in such times as these – meaning that any further government action regarding lockdown will not hinder ADR processes in resolving disputes. The courts and its processes, on the other hand, require significant investment and development to be fully functioning and effective in the new dawn of Zoom and Microsoft Teams.
The cost of litigation has always limited access to justice for those who lack the necessary financial means and time required to participate in the court process. The weakened economy caused by the pandemic will likely only intensify the struggle faced by those attempting to maintain their livelihood during costly and time-consuming litigation.
By utilising cost-effective ADR disciplines in a time like this, courts could improve the access to justice for those who would otherwise be excluded, or put off, by the court process. In Poland, for example, courts reimburse filing fees if the parties successfully use an ADR discipline such as mediation. If the UK were to adopt a similar practice, it would keep the court system functioning by reducing the potential backlog in the system.
Merely being involved in litigation, which is often a matter of public record, results in public scrutiny and reputational damage, which can often lead to a loss of business. Litigation can expose trade secrets, putting a business’ success in jeopardy as competitors can gain valuable information that pose a threat to the company's market position or share. Misleading or bad publicity during and following a court case can further tarnish a business’ reputation.
On the other hand, private ADR processes pose little reputational risk to the parties involved. Only the disputing parties, the facilitator, and a possible appointing body are privy to the ADR taking place – whatever is said and done is confidential and cannot be shared with the court.
It is impossible to judge just how many businesses are going to face COVID-19 related litigation. However, by employing ADR methods they can avoid the court system. Furthermore, ADR’s confidentiality aspect ensures that businesses do not suffer from reputational damage. The current uncertain economic climate threatens the success of many businesses but by eliminating reputational scrutiny and damage caused by litigation, businesses have one less precarious factor to fear.
By promoting and incentivising the use of ADR, the UK's court system will be able to more efficiently manage and reduce the COVID-19-induced case backlog, whilst also widening access to justice and aiding already suffering businesses.