Counting the Cost of Enlarging the Role of ADR in Civil Justice

• Main Author: Dorcas QUEK ANDERSON
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2022
• Subjects: access to justice; amicable dispute resolution; mandatory ADR; cost sanctions; proportionality; Civil Law; Dispute Resolution and Arbitration
• Online Access: https://ink.library.smu.edu.sg/sol_research/3939; https://ink.library.smu.edu.sg/context/sol_research/article/5897/viewcontent/Counting_the_Cost_of_Enlarging_the_Role_of_ADR_in_Civil_Justice.pdf
• Institution: Singapore Management University

Access to civil justice in many countries has been plagued by the common challenges of the high cost of litigation, inequality in parties’ financial resources, differing risk appetites and limited judicial resources. Singapore, a common law jurisdiction, recently implemented radical changes to its civil justice regime with effect from 1 April 2022 in order to ensure affordability and timeliness of the civil justice process. As in the United Kingdom, these civil justice reforms are premised on the proportionality principle: they seek to achieve procedure that is proportionate to the claim value and the means of the parties, without unduly compromising justice.2 The recommended reforms include the imposition of a duty on parties to a dispute to consider amicable or alternative dispute resolution (ADR) before commencing and during legal proceedings. Apart from continuing the use of cost sanctions against unreasonable refusals to attempt ADR, the court may also be empowered to order the parties to use ADR.This paper discusses the implications of increasing the civil justice system’s emphasis on the use of ADR with reference to Singapore’s recent civil justice reforms and comparable reforms in the United Kingdom. Section II examines how the inclusion of ADR in the Singapore and UK justice systems has shaped the concept of access to justice, resulting in an emphasis not only on cost-effective justice but also on tailoring the characteristics of each case to the appropriate dispute resolution process. An excessive association of ADR with cost savings will thus neglect other significant dimensions of access to justice. Section III reviews the efforts in the United Kingdom and Singapore to enlarge ADR’s role in the civil justice system through the reliance on adverse cost orders and the recent focus on mandating the use of ADR. Section IV discusses the likely cost implications of expanding the use of ADR. The threshold question of whether ADR is an appropriate process for each dispute assumes greater complexity as both the parties and the courts have to engage in detailed cost-benefit analyses to determine whether any refusal to attempt ADR or order to use ADR is justified. In this regard, the cost-effectiveness of using ADR instead of litigation may not be readily evident in Singapore because of the drastically modified litigation process that front-loads discovery and other legal work. Section V further highlights that cost concerns have to be delicately balanced with other factors relevant to access to justice, including the need to tailor the appropriate dispute resolution process to the parties’ needs. The paper proposes the adoption of a more nuanced approach that does not automatically deem mediation as decreasing the overall cost of justice and recognises the importance of other dimensions of access to justice. This will be made possible only with clear guidelines on when ADR may or may not be suitable and the judicious use of mandatory ADR orders. Above all, the cost of civil justice must be evaluated not only in financial terms but also other aspects of justice relating to the quality of dispute resolution.