The Civil Procedure Rule Committee (CPRC) initiated a consultation on proposed amendments to the Civil Procedure Rules (CPR) to incorporate alternative dispute resolution (ADR) more prominently within the litigation process and empower courts to order or encourage parties to participate in ADR procedures. This consultation followed the Court of Appeal decision in Churchill v Merthyr Tydfil County Borough Council and was open from 16 April 2024 to 28 May 2024. The Churchill decision held that the English courts do have the power to stay civil proceedings for, or order, parties to engage in mediation or another non-court-based dispute resolution process – provided that the order does not impair the essence of the claimant’s fundamental right to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
The current CPR state that litigation should be a last resort, and parties should consider whether negotiation or other forms of ADR might enable them to settle their dispute without commencing proceedings. However, the court can impose costs sanctions on parties who unreasonably refuse to mediate or participate in ADR, or who do not respond to a proposal to mediate from another party, under CPR 44.2(6)–(7). The court can also use sanctions against parties who refuse to take part in ADR, even before an action is started.

The proposed amendments to the CPR aim to incorporate ADR more prominently into the litigation process. The key suggested changes include:

– Amending CPR 1.1 (overriding objective) to include using and promoting ADR as part of dealing with cases justly and at proportionate cost.

– Amending CPR 1.4 and CPR 3.1 to empower judges to order, as well as encourage, parties to participate in ADR procedures.

– Amending Parts 28 and 29 to require courts to consider whether to order or encourage ADR participation for fast track, intermediate track, and multi-track claims.

– Amending Part 44 to consider the conduct of parties regarding ADR when making costs orders, including penalties for failing to comply with ADR orders or unreasonably refusing to participate in ADR proposed by another party.

By amending the overriding objective (CPR 1.1) to include using and promoting ADR, the amendments aim to make the consideration of ADR a key part of the court process. This change, coupled with empowering judges to order ADR participation (CPR 1.4 and CPR 3.1), could potentially lead to a substantial increase in the use of ADR procedures, such as mediation, conciliation, and arbitration. Obviously the factors that influence whether and when ADR will be appropriate differ greatly between different types of claims.
In complex commercial litigation parties will often decide themselves to undertake mediation, or another form of ADR, at an appropriate stage.

The proposed changes reflect the court’s power to order ADR following the judgment of the Court of Appeal. The court did not lay down any checklist or fixed principles for judges when deciding whether to order ADR. This means that whether ADR is ordered remains discretionary but reflects a clear direction of travel.