I thank my noble friend Lady McIntosh for this amendment and for explaining making ADR—alternative dispute resolution—compulsory so eloquently. Where there is disagreement, it is always good if there can be a mechanism, but we have to remember that ADR is not one sort of ADR. There are many different types, which I shall go into.
I shall reiterate the Government’s position of not supporting the approach and supply more information that I hope will convince your Lordships that these amendments are not only unnecessary but could be
actively counterproductive. As my noble friend Lord Parkinson mentioned in Committee, ADR not being mandatory is a deliberate policy choice, made for the following reasons. First, where ADR is appropriate, mandatory ADR would compel some parties to participate in a process in which they do not want to be involved, which would make them less inclined to engage actively. This would increase the risk of failure and the parties would then have to go to court anyway. It would serve only to add an additional layer of time and cost to landowners.
On this point, I return to my noble friend Lord Parkinson’s previous comments highlighting the counter- productive incentives that mandatory ADR risks creating. There are many types of ADR with different formats, timescales and costs. For example, mediation and arbitration are both types of ADR. In a situation where mandatory ADR has forced a party into ADR against its will, the party may seek an inappropriate form of ADR to frustrate the process and force the matter to proceed to court. This would result in the parties incurring additional time and costs for no practical benefit.
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Secondly, some forms of ADR, such as judge-led mediation or judge-led early neutral revaluation, both of which I understand are offered by the land tribunal, are available to parties only once proceedings have been issued. Therefore, making ADR mandatory before proceedings have been issued would prevent parties engaging with these types of ADR.
Finally, ADR may not be suitable in certain cases. For example, where a disagreement is based on different interpretations of the law, this would have to be determined by a court. Mandatory ADR would add cost and time to this process without any real benefit.
On this point, I should draw your Lordships’ attention to Section 119 of the Communications Act 2003. This creates a power for Ofcom to give assistance to parties, excluding operators, in relation to proceedings under the code. In particular, this power highlights that such assistance may be given on the ground that the case raises a question of principle. This power further demonstrates the potential for cases to arise that are based on a question of principle and need to be determined by a court. In such a scenario, mandatory ADR would do little to resolve the point in dispute. In addition, this power should, I hope, help reassure the noble Lord, Lord Clement-Jones, who in Committee argued that operators’ ability to use the courts in general is far greater, befitting their corporate size. Section 119 shows that measures are already in place to redress any such imbalance, and the provisions encouraging the use of ADR will, without further amendment, help this by reducing the need for cases to proceed to court.
When analysing responses to the public consultation, the department found that a clear majority of groups that gave views on compulsory ADR opposed it. Among the responders was the Royal Institution of Chartered Surveyors which noble Lords will acknowledge is expert in this field. Indeed, it is devising an ADR process of its own for use in code disputes. It advised
that the optimal outcome is agreement reached through consensus. Leaving control of the process to the parties will assist in building trust in the system and thereby enhance potential take-up. I hope this additional detail will persuade some noble Lords that this amendment will achieve the opposite of its intended effect, disincentivising participation in ADR and potentially increasing the cost for site providers for little or no benefit.
Perhaps I should repeat that Clause 68 sets out the two new requirements on both parties and one new requirement for courts. First, when a notice is sent requesting rights under the Electronic Communications Code, the notice must inform the landowner of the availability of ADR and that, if parties are unable to agree, they may proceed with ADR. Secondly, operators must consider using ADR before applying to the courts in cases where an agreement cannot be reached. If the matter relates to the renewal of an agreement which has expired or is about to expire, either party must consider ADR before applying to the court. Finally, when awarding costs, the court is required to take into account any unreasonable refusal to engage in ADR by either party.
It is for these reasons that the Government maintain their opposition to mandatory ADR. I hope my noble friend will withdraw her amendment.