Alternative Dispute Resolution at the European Community Level

  26. ALTERNATIVE DISPUTE RESOLUTION

Background

26.1

We considered the Commission's Green Paper on alternative dispute resolution (ADR) on 3 July. We noted that the aim of the Commission's Green Paper was to outline the current practice in relation to ADR in the Member States and to initiate a broad consultation on a number of legal issues arising from the use of such systems in civil and commercial disputes.

26.2

We supported the view expressed by the Minister that any future proposals for legislation in the fields covered by the Green Paper should comply with the principle of subsidiarity. We also considered that the essentially voluntary nature of ADR made the principle of proportionality also of particular relevance. We agreed with the Minister that, in relation to purely domestic disputes, reliance on Article 95 EC as a legal base for measures on ADR was far from being properly established, and we were grateful to the Minister for her undertaking to supply us with a copy of the Government's proposed reply to the Green Paper.

The Minister's letter

26.3

In her letter of 1 November 2002, the Parliamentary Secretary at the Lord Chancellor's Department (Baroness Scotland QC) informs us that the Government's overall response to the questions posed by the Commission is that the regulation of ADR is to be avoided, and that this view is broadly supported by the other UK respondents to the Green Paper who have copied their replies to the Minister.

26.4

The Government makes a number of further points in its reply. It points to the differences between mediation in family disputes and mediation in civil and commercial matters generally, and does not consider that harmonisation at EU level is appropriate. It also considers that the scope of ADR is a matter for agreement between the parties and that limits should not be imposed, either at national or EU level. It does not favour the suggestion made by the Commission that national limitation periods should be suspended while the parties seek to resolve their differences by means of ADR. The suggestion that the laws of Member States on the confidentiality of ADR proceedings should be harmonised is similarly dismissed, on the basis that confidentiality arrangements need to be flexible and dependent on the views of the parties. The Government points out that, in any event, confidentiality agreements in the field of family mediation may have to give way to the needs of child protection.

26.5

In conclusion, the Government welcomes the Commission's Green Paper and considers that it has correctly identified the issues. The Government urges the Commission to be cautious before attempting to introduce regulation for ADR, since this might 'stifle the very aspects of ADR that make it such a valuable part of the civil justice system — its flexibility and innovation'. It suggests that the Commission should concentrate instead on initiatives that encourage best practice and facilitate the use of ADR in cross-border matters.

Conclusion

26.6

We thank the Minister for her letter and for supplying us with a copy of the Government's proposed response to the Commission Green Paper. We agree with the points made in the reply, in particular that ADR depends on the agreement of the parties, and that to regulate the process at EU level would be inappropriate.

26.7

We have no further questions to put to the Minister and we clear the document.