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

Abstract

Singapore, a common law jurisdiction, recently implemented radical changes to its civil procedure regime in order to ensure affordability of the civil justice process. The reforms include the imposition of a duty on parties to consider alternative dispute resolution (ADR) before commencing and during legal proceedings and the empowerment of courts to order the parties to use ADR. This paper discusses the implications of increasing the justice system’s emphasis on the use of ADR with reference to Singapore’s civil justice reforms and comparable reforms in the United Kingdom. It demonstrates how the historical inclusion of ADR in the justice system 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. The paper argues that the question of whether ADR is an appropriate process for each dispute assumes greater complexity as both the parties and the court have to engage in detailed cost-benefit analyses to determine whether any refusal to attempt ADR or order to use ADR is justified. Cost concerns also have to be delicately balanced with other factors relevant to determining the appropriate dispute resolution process. The author proposes adopting a more nuanced approach that does not deem mediation as automatically decreasing the overall cost of justice and recognises the importance of encouraging appropriate dispute resolution.