ADR Fundamentals
The ADR Fundamentals domain tests whether you can classify processes precisely, explain why parties choose them, and situate them against litigation and the civil justice system. Questions cluster around definitions, the voluntary/mandatory distinction, interest-based versus rights-based approaches, and the courts' power to encourage - but not impose - settlement.
The spectrum of processes
ADR is an umbrella term, not a synonym for mediation. It covers negotiation, mediation, conciliation, adjudication, expert determination, early neutral evaluation, arbitration and ODR. Two axes organise the field. Facilitative to determinative: a mediator facilitates, while an adjudicator, arbitrator or expert determines. Interest-based to rights-based: mediation explores underlying interests, arbitration applies legal rights. Arbitration is the outlier - consensual in origin yet adjudicative, and enforceable abroad under the New York Convention 1958.
Why parties choose ADR
Speed, cost, confidentiality, specialist neutrals, procedural control, relationship preservation and cross-border enforceability. The limits matter equally: mediation produces no binding outcome without agreement, awards have little precedential value, bargaining power may be unequal, and a failed attempt adds cost and delay.
Courts and ADR
Under the Civil Procedure Rules in England and Wales, parties must consider ADR: CPR 1.1 (overriding objective), the pre-action protocols and CPR 44 (costs). Courts may stay proceedings, order attendance at a mediation information session, and penalise unreasonable refusal in costs. Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 lists relevant factors: the nature of the dispute, the merits, whether other settlement methods were tried, the cost of mediation, delay, and whether mediation had a reasonable prospect of success. A court may compel attendance at a process; it cannot compel agreement.
Worked example
A claimant with a strong point of law refuses a free mediation, wins at trial and seeks full costs. The defendant argues the refusal was unreasonable. The tribunal asks whether mediation had a reasonable prospect of success, noting that liability turned on a discrete legal question and detailed offers had already been exchanged. If mediation could not realistically have settled the case, the refusal was reasonable and no costs penalty follows. Had the real dispute been quantum and the commercial relationship, a penalty would be more likely. The reasoning, not the outcome, earns marks.
Traps
Treating ADR as a synonym for mediation; assuming a court can order a settlement; treating confidentiality as absolute; assuming 'without prejudice' privilege attaches automatically to every ADR communication rather than only to communications made in a genuine attempt to settle.