ADR: Pressure points

Nobody can be sure how the human Rights Act will affect alternative dispute resolution. It is likely, however, that its impact will be a good deal wider than most of us are expecting. The reason is that, although the UK is already subject to the European Convention on Human Rights, someone wishing to take advantage of his rights would have to go through the elaborate and time-consuming process of going to Strasbourg, which could only be done when all possible domestic remedies had been exhausted. Now, a human rights point can be raised from the beginning of a dispute. This will be much cheaper. We can also be sure that many more lawyers will become aware of the possibility of raising human rights points, so they will become an everyday question rather than an esoteric matter only understood by specialists.

The key provision is article 6.1, which states:

“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

We can be sure that many more lawyers will become aware of human rights points so they will become an everyday question

Of course, public hearings are not a feature of any of the methods used to resolve construction disputes other than litigation. Historically, one of the main attractions of arbitration was that it was private. In a standard construction arbitration, it is probably reasonable to hold that the parties have waived their rights. This is less obvious in adjudication, because it may be argued that it is mandated by parliament, although in practice adjudication would usually be based on a provision in the contract, even though it is only in the contract because of the 1996 Construction Act.

It seems probable that article 6.1 does not apply to straightforward party-to-party negotiation. This does not result in a determination of rights. Some forms of ADR, such as mediation, may be thought to be no more than assisted negotiation, since the mediator usually has no power to make decisions but simply flies back and forth between the parties like Henry Kissinger, trying to help them reach an agreement.