Courts in England and Wales are increasingly encouraging the use of Alternative Dispute Resolution (ADR), and for good reason. Resolving disputes through non-court-based dispute resolution processes tends to be quicker and less expensive for all parties involved and helps to relieve pressure on the court system. Despite these benefits, alternative dispute resolution is still not mandatory for all cases. However, proposed changes to the law and new precedents could see more people being required to consider non-court-based dispute resolution processes.

Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416

In the case of Churchill v Merthyr Tydfil, a relatively simple dispute over Japanese Knotweed resulted in a landmark decision for the legal system.

Churchill had started legal proceedings against Merthyr Tydfil County Borough Council, claiming they had allowed the destructive plant species to spread from their land onto his private property.

Having started proceedings without considering ADR, Merthyr Tydfil Country Borough Council argued that Churchill should have explored non-court-based processes first, such as its internal complaint process, and applied for a stay of proceedings.

Initially, the Court did not grant this application based on the longstanding precedent of Halsey v Milton Keynes General NHS Trust [2004]. However, The Court of Appeal would later overturn this decision, granting a stay of proceedings to allow time for ADR. This decision set a new precedent, enabling judges to halt claims to so that ADR can be considered or order parties to engage in a non-court-based dispute resolution process, such as mediation.

Groups, including The Law Society, raised concerns during The Court of Appeal case that the proposed changes could limit individuals access to justice and potentially breach their right to a fair trial under article 6 of the European Convention of Human Rights.

However, the judgement addressed these concerns by stipulating that ADR would not be suitable in all cases and that the Court could only order parties to engage in ADR if it did not impair ‘the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.

The Halsey v Milton Keynes General NHS Trust [2004] was counterintuitive to the Court’s efforts to increase the use of ADR. The judgement handed down by The Court of Appeal (COA) in Churchill v Merthyr Tydfil County Borough Council will avoid cases going to court unnecessarily and ensure that court proceedings are a ‘last resort’.

asking a solicitor if you have to try alternative dispute resolution before going to court

Compulsory Mediation for Civil Small Claims

In July 2023, the Ministry of Justice (MoJ) confirmed that mediation will become compulsory for all civil small claims (up to £10,000). Whilst it has not set a date yet, the MoJ is expected to implement the changes within the next few months.

Justice Minister Lord Bellamy KC stated, ‘I am pleased to confirm the Government’s intention to fully integrate mediation into the court process for civil claims valued up to £10,000. We will aim to make mediation an essential step for all claims for specific amounts of money, which make up 80% of small claims, during this Parliament.’

Under the new system, the court would refer all defended small claims to the Small Claims Mediation Service and stay proceedings for 28 days. Mediation will first be made mandatory for specified money claims before eventually being applied to all claims issued under the standard part 7 procedure of the Civil Procedure Rules.

Participation in mediation will be mandatory for all parties, even if they do not want to engage. Should a party fail to attend a scheduled mediation appointment, a judge can apply a suitable sanction at their discretion, including strike-outs or cost sanctions.

The Law Society has expressed strong reservations about compulsory mediation, raising concerns it could prevent access to justice and be detrimental to those involved in cases.

Depending on the success of compulsory mediation for small claims, the Ministry of Justice may expand these changes to cover higher-value claims.

The Family Procedure (Amendment No. 2) Rules 2023

Set to take effect in April 2024, The Family Procedure (Amendment No. 2) Rules 2023 significantly change the family court’s approach to ADR, including:

  • Expanding the definition of non-court dispute resolution to include any method of resolving a dispute outside of court, such as mediation, arbitration, evaluation by a neutral third party (Financial Dispute Resolution, etc.), or collaborative law.
  • Removing certain MIAM (mediation information and assessment meeting) certificate exemptions (whilst ensuring domestic abuse victims are protected).
  • Requiring MIAM providers to explain – and parties to consider – all suitable methods of ADR, not just mediation.
  • Requiring parties that decide not to engage in non-court dispute resolution processes to explain their reasons by filing a form with the court and other party in the dispute.
  • Enabling the court to use timetabling of proceedings to promote the use of ADR.
  • Giving the court the power to make an order for costs in financial remedy cases when one party has refused to consider ADR without a good reason.

These changes highlight a concerted effort by the family courts to increase the use of non-court dispute resolution processes. However, it is important to note that whilst the family court is increasingly encouraging ADR, it has also made provisions to ensure victims of domestic abuse will be exempt. The Family Procedure (Amendment No. 2) Rules 2023 bring the FPR in line with the Domestic Abuse Act 2021, broadening all references to domestic violence to include domestic abuse.

Whether you require mediation for a family court matter or a civil dispute, Scott Bailey’s award-winning solicitors and mediators can help. Get in touch today to get started.