This blog post was contributed by Lisa Kidger, Associate Dean for Undergraduate Laws.
“The way we resolve legal disputes is evolving for the modern age. Across government, we are developing innovative approaches that will empower people to resolve their disputes swiftly and effectively without the need for a court hearing.” Ministry of Justice, 2023
Alternative Dispute Resolution (ADR) is a growing area in the settlement of legal disputes. There are a number of different methods of ADR, such as negotiation, mediation, early neutral evaluation, and arbitration. Billed as being quicker and cheaper than court action, a number of jurisdictions are introducing elements of mandatory ADR, and most recently in the UK, the Civil Procedure Rules (CPR) have been updated to strengthen the powers of judges to direct parties to ADR.
Part 1 of the CPR sets out the overriding objective, which is to “deal with cases justly and at proportionate cost” (r1.1). From 1 October 2024, “promoting or using alternative dispute resolution” has been added to the list of what is meant by this. In addition, judges have been given powers to order the parties to engage in ADR as part of their general case management powers and when they make directions in fast, intermediate or multi-track cases. If the parties fail to comply with the order or unreasonably failed to engage in ADR, the courts can impose cost sanctions.
So why have these changes been made?
There have been a number of cases surrounding mandatory ADR. In Dunnett v Railtrack plc [2002], the defendants were penalised for refusing to engage in ADR. However, in Halsey v Milton Keynes General NHS Trust [2004] the Court of Appeal held that it could not compel parties to take part in ADR, as to do so might breach their Article 6 ECHR rights (the right to a fair trial).
Nearly 20 years later, the Court of Appeal considered Halsey in Churchill v. Merthyr Tydfil CBC [2023]. It determined that these remarks in Halsey were obiter (so it could decline to follow them) and that it would not breach Article 6 to order ADR.
The changes to the CPR are a direct consequence of Churchill and are welcomed by many. But it remains to be seen how this will be implemented in practice. Will mandatory ADR really become a standard feature of the legal system?
If you are interested in learning about mediation, a popular form of ADR, and you are a current registered student with the University of London Undergraduate Laws programme, you have access to our Mediation Skills course. Available on the VLE via our Study Skills page in the Employability section, you can explore what mediation is, how it works and it’s impact on the legal sector.
References
Ministry of Justice (2023). Increasing the use of mediation in the civil justice system: Government response to consultation. Link: https://www.gov.uk/government/consultations/increasing-the-use-of-mediation-in-the-civil-justice-system/outcome/increasing-the-use-of-mediation-in-the-civil-justice-system-government-response-to-consultation
Dunnett v Railtrack plc [2002] EWCA Civ 2003
Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576
Churchill v. Merthyr Tydfil CBC [2023] EWCA Civ 1416