In October 2021, JUSTICE responded to the Ministry of Justice’s Consultation on Dispute Resolution in England and Wales.
The response drew upon our 2020 Solving Housing Disputes report, which set out proposals to create a more unified and accessible housing dispute system. It also addresses points raised by JUSTICE’s working party on Improving Access to Justice for Separating Families.
In summary, JUSTICE supports the spirit of the consultation in seeking to increase the use of DR processes across the civil justice system, where appropriate. However, in our response, JUSTICE stresses the importance of taking a nuanced approach to DR, depending on the context.
What makes DR appropriate is the extent to which it allows parties the opportunity to holistically investigate the underlying causes of a dispute, de-escalate tensions between parties and achieve a sustainable outcome that is satisfactory. In order for this to be possible, parties must be able to access early legal advice and support, which will require the provision of legal aid. Parties should also benefit from a range of different types of DR (i.e. formal v informal methods).
When DR will be appropriate is a separate question that will depend on various factors including the personal characteristics of parties, taking into account any respective vulnerabilities, the extent of resources available to either party, the status of the relationship between parties and often the type of dispute that they are involved in. Deciding when DR will be appropriate also requires an understanding of the reasons why parties are more or less likely to engage in it. This will enable lessons to be learnt and where necessary, improvements or adjustments made to both the DR process and the court system.
Appreciating these nuances will ensure that DR moves from the ‘alternative’ to the ‘mainstream’ and will allow it to achieve its ends of improving efficient and effective access to justice. However, in order for this to happen, JUSTICE considers that reform of DR must be accompanied with investment in early legal support, the improvement of public education about DR and the need for more continuous evaluation.