2 Jul 2012
ADR Principles and Practice
A review of the third edition of ADR Principles and Practice by Henry Brown and Arthur Marriott from Tony Allen, Solicitor, Mediator and Senior Consultant to CEDR
The publishing history of this standard text of ADR closely mirrors the history of ADR development in the United Kingdom. The first appeared in 1993, when family and community mediation had begun to be established in the UK, but commercial mediation was still in its infancy, and there was little perceptible policy as to ADR development emerging from either government and judiciary. The second edition was dated 1999, the momentous year which saw introduction of the Civil Procedure Rules based on the Woolf Reports, and which saw ADR for the first time formally acknowledged within civil procedure as a tool of active case management, itself becoming the paramount principle underpinning court control of civil litigation, and with the senior judiciary taking a firm lead on the place of ADR. Now the third edition has arrived in 2012, in a year when Government is certainly enunciating its commitment to the extended use of ADR and mediation in particular as a means of ensuring access to justice at a time when public funding of civil justice is becoming increasingly difficult. Maybe the judiciary is a little more cautious about ADR now, though they have never said so in terms, except to express strong reservations about mandating its use.
So the new edition of Brown and Marriott again comes at an opportune time to stimulate debate and provide a solid foundation for understanding what mediation is about. One of Sir Rupert Jackson’s pleas about ADR is that there should be better education for all, including the judiciary, about its benefits. This book can certainly provide exactly that. It is a wide-ranging treatise, looking in some detail at the broad range of processes to be regarded as sitting beside mainstream civil justice as ways of resolving disputes before or while proceedings are afoot. There are brief chapters on arbitration (though nothing on recent attempts by CEDR to encourage settlement of disputes in arbitration), and also adjudication, non-binding evaluation and collaborative law processes. There are some new and interesting chapters on dispute resolution psychology and working with high conflict parties towards the end, with a full discussion at the beginning of the reasons for ADR, its philosophy and its place in the overall world of negotiation.
The heart of the book – ten of its chapters, plus many references in many others - deals with mediation, undoubtedly the premier ADR process in the UK. Interestingly, the authors speculate that far more disputes in the UK are now resolved by mediation than by arbitration. As well as providing a general practical overview, specialist chapters deal with commercial, family, community, workplace and environmental mediation, and with restorative justice. A further chapter deal with the lawyer’s role in representing clients in mediation, a generally under-estimated skill in which the legal ;profession is still under-trained.
One of the delights to be derived in looking at a new edition of an established textbook lies in measuring progress and change. Matching the growth of interests in ADR, the 3rd edition is 200 pages longer (120 more of text and 80 more of appendices). There are six more chapters, and, as a direct reflection of the growth of case-law relevant to ADR between 1999 and 2012, the table of cases has grown from 3 ½ pages to 6!. Also note the changes in names – employment mediation has become workplace; “victim-offender” has become “restorative justice”, and collaborative law approaches are introduced into discussion of family dispute resolution. The only apparent chapter victim from the 2nd edition seems to be one entitled “Choice and timing of process use”, doubtless because the whole new edition is about laying out all relevant processes in some detail in order to enable disputants to make informed choices.
One reviewer of “The ADR Practice Guide: Commercial Dispute Resolution” to which I contributed with Karl Mackie, David Miles and Bill Marsh – a rather shorter paperback text by comparison with Brown and Marriott – commented that our text was free from academic references, which he rather charitably suggested might possibly have assisted its readability! A standard work of reference cannot afford such a luxury, however, and Brown and Marriott have footnoted a strikingly wide range of sources, both academic and practical, especially in the huge US and Australian literature, and it possesses a formidable bibliography, encouraging speculation as to how the authors could possibly have fitted in any normal life with so much to read!
The title is “ADR Principles and Practice”. How does the title relate to the balance of the book? In my view this is predominantly a book about ADR practice, and not a legal textbook, despite the amount of law in it. The second edition had the accolade for any textbook of being referred to in the judgments in Brown v Rice and Patel and Farm Assist v DEFRA (No.2), though essentially as saying that it is not yet clear whether something called mediation privilege exists as a principle. An illustration of its practical rather than theoretical/ legal approach being taken is in the discussion of the Halsey principles for considering costs sanctions against a successful party who refused mediation. This appears not in a chapter on ADR law but in one dealing with the lawyer’s role in ADR confronted with deciding whether mediation is the right course. Another is the sudden appearance of the very important discussion of confidentiality and privilege in Chapter 23 sandwiched between high conflict parties and ethics, values and fairness. The legal implications of the mediation agreement are touched upon, but there is much more debate to be had on these. The controversy over whether a mediator can or should be called as a witness, and when “the interests of justice” might legitimately overrule confidentiality will need deeper exploration one day.
So this is not a source-book for legal argument and not necessarily the worse for that: a different book with such an objective may be worth considering. Nor is the legal exposition unsound. It is in my view measured and accurate, but on the whole shuns controversy. I suppose that this betrays a touch of unseemly impatience in me as someone who writes articles about ADR which may sometimes be journalistically provocative. For instance, the argument that parties might need a precedent as justifying not mediating in my view needs an answer from an educative book: that it is fine if you do not care which way the precedent is decided, but if it might be disastrous if decided against you, there is a litigation risk which must be worth mediating. The retained organs mediation and litigation is a fine example of the very sensible buying up of the risk of an adverse precedent by the Alder Hey group, which worked out to the serious detriment of a large proportion of litigants who continued to court in the National retained organs group litigation. To leave that point unchallenged as being orthodox in a book which may be read by people who need to have their assumptions challenged on such matters misses a useful educational opportunity.
But steadiness is what one should expect of a book intended to be the authoritative hardback reference text on ADR, and this edition of this book certainly achieves that. It has useful course materials, precedents and contact details, plus the EU Directive and some relevant extracts from the CPR in its appendices. It is a book that belongs in legal libraries in universities and lawyers’ offices, and I doubt that for all its practicality I shall see it in a room at a mediation. However, a paperback version is planned for June 2012, which may widen its appeal and affordability. Its great benefit – whatever the format - is to provide a sound source of learning for all those still requiring education about the nature of ADR, its historical, juridical and psychological origins and its undoubted benefits.
The third edition of ADR Principles and Practice is now available in paperback, published by Sweet and Maxwell.