The Future Lawyer Weekly Update – w/c 19th July

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Report

Civil Justice Council Report finds Mandatory ADR is Lawful

Reported by Jasmine Cracknell

A report of the Civil Justice Council published last week has concluded that mandatory alternative dispute resolution (ADR) is lawful and should be encouraged.

ADR is a process through which parties attempt to resolve their disputes outside of court and includes methods such as mediation, arbitration and early neutral evaluation.

Under the current system, parties in dispute have to consider ADR but do not have to proceed with the process if they do not want to. However, while the process is optional, unreasonably rejecting ADR could have costs consequences if the case eventually goes to court.

The Civil Justice Council’s report which was commissioned in January by the Master of the Rolls examines the legality and desirability of making ADR compulsory, rather than optional.

The report found that compulsory ADR is compatible with Article 6 of the European Convention on Human Rights (ECHR), but recognized that certain factors will need to be taken into account when designing any compulsory ADR scheme. These factors include:

• the cost and time burden on the parties
• whether compulsory ADR is suitable for certain specialist areas of civil justice
• the importance of confidence in the ADR provider and the role of regulation
  for private ADR providers
• the parties’ access to legal advice
• which stage of the proceedings compulsory ADR may be required
• whether the terms of the obligation to participate are clear enough to encourage compliance between the parties.

The report also sets out three possible forms compulsory ADR could take.

The first would be to make ADR compulsory between parties in dispute as long as the type of ADR is suitable and effective and ‘occasions no expense of time or money by the parties’. The report finds that where this can be achieved, compulsory ADR is not likely to be controversial.

Another option would be to increase the use of judge-led ADR. The report notes that current judge-led ADR is proving effective in areas for which it is already compulsory.

Finally, it states that compulsory mediation may be considered provided it is sufficiently regulated and made available in a short and affordable format.

Lady Justice Asplin, chair of the Judicial/ADR Liaison Committee and lead judge for ADR, said: ‘This report addresses questions which are central to the shape and design of dispute resolution in the twenty-first century.

“We have concluded that ADR can be made compulsory, subject to a number of factors. More work is necessary in order to determine the types of claim and the situations in which compulsory (A)DR would be appropriate and most effective for all concerned, both in the present system and in relation to online justice.’

Sir Geoffrey Vos, master of the rolls and chair of the Civil Justice Council, said: 'As I have said before, ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.’

Find out more here and here.

European Court of Justice Case

Court ruling on headscarves

Reported by Laurence Tsai 

The European Court of Justice (“ECJ”) has ruled that private companies can ban people from wearing religious, political or philosophical symbols to present an image of neutrality.
The latest judgment went further by examining the grounds employers can use when making such prohibitions.
The ruling provides that if companies establish such a prohibition, then it must be enforced against all religious, philosophical and political symbols. The ECJ’s ruling lays down some conditions that employers can use to justify such prohibitions:

• (a) The employer’s desire to pursue a policy of political, philosophical and religious neutrality towards customers or to prevent social disputes.
• (b) The ban must correspond to an employer’s genuine need.
• (c) A member state can consider the ‘specific context’ in their country, such as more favourable national legislation on freedom of religion.
• (d) The ban must not be detrimental to the employer’s activities.

The ruling follows from the 2017 cases brought by two German Muslim women. In both cases, the women were told to remove their headscarves. After refusing to do so, they were eventually dismissed by their respective employers. The German courts found the dismissals not only discriminatory but also in contravention to the country’s constitution. The cases reached the ECJ, which ruled that private employers have the right to dismiss employees for manifesting their religious beliefs by presenting political or religious symbols.

There have been concerns that such a prohibition will enable employers to exclude many Muslim women, and those of other religious minorities, from various jobs in Europe, such as public-facing roles or customer-facing positions. Indeed, if clients express their view to the company that they are not comfortable with, or are offended or intimidated by individuals who wear traditional religious clothing, the employer may take their legitimate wishes into account and establish a policy.

However, employers must be careful when setting out their policies as they could risk being liable for discrimination if they don’t meet the conditions set by the ECJ, such as to demonstrate a genuine need for a religious dress ban.

Since the ruling, Turkey has criticized the ECJ for “granting legitimacy to racism”.

You can find more here or here.