Michael Cover's News

The Government has launched a new Dispute Resolution Commitment (DRC), which builds on the Alternative Dispute Resolution (ADR) Pledge which was launched in 2001. The Commitment is aimed at encouraging increased use of flexible, creative and constructive approaches to avoid, manage and resolve disputes.

The overriding objective for publication of the Commitment is to show how the Government intends to lead by example in resolving disputes quickly and efficiently using non-Court-based techniques and processes. The DRC will require all Government departments and agencies to use alternatives such as mediation, arbitration and conciliation wherever possible before taking disputes to court.

Michael Cover, Chartered Arbitrator and Accredited Mediator, welcomes this move by the Government but has doubts to whether the commitment can really fulfil its purpose. "I hope that the Dispute Resolution Commitment is taken more seriously by Government Departments and other public sector organs than has hitherto been the case. It needs to be taken more seriously than its predecessor "pledge" by the Courts as illustrated by the Court of Appeal in the Halsey Case, which involved an NHS Trust, and also by the lawyers involved for all the parties to disputes. The DRC exhorts the public sector to engage and be proactive, which would be wonderful to see."

The Halsey case in 2004 involved a claim against the NHS Trust by Lillian Halsey, after her husband Bert, aged 83, died at Milton Keynes General Hospital. Bert Halsey was being fed through a nasal drip and died as a result of liquid food entering his lungs. There was a dispute about whether or not the negligence of the hospital staff had caused his death and an inquest was held. The results of the inquest were inconclusive, as two medical experts disagreed about responsibility. The Claimant's solicitors suggested mediation but this was deemed inappropriate by the Trust as it did not accept it had any liability. The ADR Pledge failed to influence the issue one way or another and this raised doubts over its effectiveness in helping to resolve disputes.

Can the DRC provide an approach to resolving disputes quickly and efficiently or will it have the same pitfalls as its predecessor, the ADR Pledge? In that context, it is interesting and disappointing to note that the Attorney-General, Dominic Grieve, comments that there are always going to be cases that need to be litigated. With the array of differing Early Dispute Resolution Techniques available, the question to be asked is Why?