The co-optation of the techniques and languages of alternative dispute resolution : a critical assessment of developments in the UK

Alternative Dispute Resolution (ADR) is a consensual process where the parties agree to come to a solution, which means that autonomy is a central characteristic of this category of dispute resolution processes. Tidwell identifies that “mediation is predicated upon mediation’s flexibility informality and consensuality opening up the full dimension of the problem facing the parties. Parties come to mediation because it is flexible and thus convenient. Mediation is used because it is not adversarial, but rather seeks to satisfy the needs of the presenting parties”. The very nature of mediation and other ADR processes is that it is based upon a consensual process, which is outside of the judicial system. The problem with co-optation is that it is judicialising ADR processes through avenues such as mandatory mediation or adjunctive adjudication processes .The implication of this is that there is a framework in place that is no longer consensual in nature; rather, it is merely an extension of the coercive power of the judicial system. In the UK, there is arguably a system of co-optation through Civil Procedure Rules (CPR) and Family Procedure Rules (FPR), because instead of promoting consensual mediation and ADR processes they are coercing individuals to comply with an obligation to engage in ADR prior to entering the courts. Thus, this paper is going to examine the content of the CPR and FPR to determine whether there is a process of cooptation is occurring within English law