26. ALTERNATIVE DISPUTE
RESOLUTION
| (23438)
8336/02
COM(02) 196
| Commission Green Paper on alternative dispute resolution in civil and commercial law.
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| Legal base: | —
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| Document originated: | 19 April 2002
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| Deposited in Parliament: | 9 May 2002
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| Department: | Lord Chancellor's Department
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| Basis of consideration: | Minister's letter of 1 November 2002
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| Previous Committee Report: | HC 152-xxxv (2001-02), paragraph 12 (3 July 2002)
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| To be discussed in Council: | No date fixed
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | Cleared
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Background
26.1
We considered the Commission's Green Paper on alternative dispute
resolution (ADR) on 3 July. We noted that the aim of the Commission's
Green Paper was to outline the current practice in relation to
ADR in the Member States and to initiate a broad consultation
on a number of legal issues arising from the use of such systems
in civil and commercial disputes.
26.2
We supported the view expressed by the Minister that any future
proposals for legislation in the fields covered by the Green Paper
should comply with the principle of subsidiarity. We also considered
that the essentially voluntary nature of ADR made the principle
of proportionality also of particular relevance. We agreed with
the Minister that, in relation to purely domestic disputes, reliance
on Article 95 EC as a legal base for measures on ADR was far from
being properly established, and we were grateful to the Minister
for her undertaking to supply us with a copy of the Government's
proposed reply to the Green Paper.
The Minister's letter
26.3
In her letter of 1 November 2002, the Parliamentary Secretary
at the Lord Chancellor's Department (Baroness Scotland QC) informs
us that the Government's overall response to the questions posed
by the Commission is that the regulation of ADR is to be avoided,
and that this view is broadly supported by the other UK respondents
to the Green Paper who have copied their replies to the Minister.
26.4
The Government makes a number of further points in its reply.
It points to the differences between mediation in family disputes
and mediation in civil and commercial matters generally, and does
not consider that harmonisation at EU level is appropriate. It
also considers that the scope of ADR is a matter for agreement
between the parties and that limits should not be imposed, either
at national or EU level. It does not favour the suggestion made
by the Commission that national limitation periods should be suspended
while the parties seek to resolve their differences by means of
ADR. The suggestion that the laws of Member States on the confidentiality
of ADR proceedings should be harmonised is similarly dismissed,
on the basis that confidentiality arrangements need to be flexible
and dependent on the views of the parties. The Government points
out that, in any event, confidentiality agreements in the field
of family mediation may have to give way to the needs of child
protection.
26.5
In conclusion, the Government welcomes the Commission's Green
Paper and considers that it has correctly identified the issues.
The Government urges the Commission to be cautious before attempting
to introduce regulation for ADR, since this might 'stifle the
very aspects of ADR that make it such a valuable part of the civil
justice system — its flexibility and innovation'. It suggests
that the Commission should concentrate instead on initiatives
that encourage best practice and facilitate the use of ADR in
cross-border matters.
Conclusion
26.6
We thank the Minister for her letter and for supplying us with
a copy of the Government's proposed response to the Commission
Green Paper. We agree with the points made in the reply, in particular
that ADR depends on the agreement of the parties, and that to
regulate the process at EU level would be inappropriate.
26.7
We have no further questions to put to the Minister and we
clear the document.
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