Utilising non-adjudicative ADR in Complex Commercial Claims: A comparative analysis of English and Ontarian frameworks

Does mandatory mediation in commercial claims change the way commercial disputes are settled? 

Fatma Nursima Arslan
Recently completed her PhD at the University of Leicester Law School, she is currently awaiting graduation.

Key Words: Alternative Dispute Resolution, non-adjudicative ADR, commercial disputes, mandatory mediation, England and Wales, Ontario

Abstract
This paper provides a comparative analysis of court-connected non-adjudicative ADR frameworks in England and Wales and Ontario within the context of high-profile commercial disputes. Both jurisdictions have long integrated ADR into their civil justice systems and Ontario’s Mandatory Mediation Programme has set it apart, serving as a model for England and Wales. However, significant distinctions exist regarding high profile commercial claims, notably Ontario’s exclusion of these claims from its’ Mandatory Mediation Programme. This study examines these distinctions and their implications, aiming to deepen the understanding of these ADR procedures’ role in resolving complex commercial disputes. It reveals that, despite being excluded from Ontario’s Mandatory Mediation Programme, a culture of settlement is well established among the stakeholders of Commercial List with clear messages being sent regarding parties’ ADR obligations. England and Wales, on the other hand, has only recently achieved clarity on whether courts can mandate ADR. Despite this, inconsistencies in terminology across different court guides and the underutilization of some of these ADR schemes persist. The paper concludes that, in highly complex litigation, voluntariness in ADR remains the preferred approach to meet the needs of commercial parties. However, the general trend towards a more holistic understanding of dispute resolution, with trials increasingly seen as a last resort is also evident in the resolution of these claims.