The latest edition of the Commercial Court Guide (CCG) swaps “alternative dispute resolution” (ADR) for “negotiated dispute resolution” (NDR). ADR is a familiar concept so why change the name and why now?

The CCG’s rebrand of ADR will have come as no surprise to those monitoring the wide-ranging ADR-related initiatives underway including:

• The Right Honourable Sir Geoffrey Vos, Master of the Rolls’ (MR) vision to do away with the “alternative” tag completely. His holistic approach to DR involves creating an integrated online justice system into which [A]DR is integrated at every stage … with the intention of bringing about a dispute’s compromise.
• The government’s drive to encourage businesses to collaborate on dispute avoidance and dispute resolution (DR) through its: [COVID-19] Guidance on responsible contractual behaviour in the performance and enforcement of contracts; Construction Playbook (that promotes the Conflict Avoidance Pledge); and its Gold Standard (that encourages collaborative systems to manage framework relationships and avoid disputes);
• The review of the Arbitration Act 1996 and the 2021 DR consultation reviewing processes “hitherto regarded” as “alternative” methods of DR;
• The Civil Justice Council’s report on the resolution of small claims that recommends changes to improve small claims management including a procedure that requires compulsory mediation (or other DR process);
• The Ministry of Justice’s consultation into whether the UK should sign and ratify The Singapore Convention on Mediation that establishes “a uniform framework for the effective recognition and enforcement of commercial mediated settlement agreements across borders”; and
• continuing judicial support for ADR such as that given in The Sky’s the Limit Transformations Ltd v. Mirza [2022] EWHC 29 (TCC),  in which the judge noted “it [was] a great shame that the parties hadn’t been able to settle out of court given the time, effort, stress and cost involved” and proposed a “streamlined” process for certain building disputes that included a stay for mediation or compulsory Early Neutral Evaluation (ENE).

Some question whether NDR is the right choice of name. Clearly, NDR covers mediation but, strictly speaking, not expert determination. (The TeCSA ADR Protocol, which focuses on mediation, ENE and mini-trial as ADR forms, describes adjudication and expert determination as forms of DR related to ADR.)  Purists might argue arbitration is an alternative to litigation but, in terms of costs and time savings, few regard it as an ADR process.

Semantic arguments on what “NDR” covers or not, perhaps miss a bigger point. The CCG’s name change is a marker of a change in attitude. A tipping point has been reached. Mediation and the like merit their place in the DR toolkit as much as litigation: no single process is inherently better than another. What matters is choosing the appropriate process at each stage for each individual dispute – and setting up the systems to enable parties to access those choices.

Interestingly, the latest Queen’s Bench Division Guide 2022, issued only days after the CCG, retained “ADR”. The TCC Guide, which defines ADR widely as any voluntary process, is due for revision. Might we see ADR rebranded as NDR? Might the revisions take us closer to the MR’s vision of integrating ADR into every DR stage? We must wait and see what approach the working group takes in the third edition. In the meantime, this remains the ADR column.

This article was first published here by Construction Law on 4 April 2022. You can sign up to the newsletter here.