UK court push for mandatory ADR renews focus on mediation standards

UK court push for mandatory ADR renews focus on mediation standards

Following the Court of Appeal's decision in James Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416, which allows courts to mandate ADR, the direction of travel has continued towards mandatory ADR, with the aim of streamlining dispute resolution and reducing costs. In a further development, while the government’s consultation report of last year confirmed that statutory regulation of the mediation sector was unnecessary, the Civil Mediation Council has now announced a new mediation standards board. 

Background

The benefits of Alternative Dispute Resolution (ADR) are well established. The range of alternative means by which to resolve disputes share the aim of avoiding protracted litigation and the costs associated with it. Uptake of ADR has been steadily increasing, including in mediation.

In the wake of the recent Court of Appeal decision in Churchill v Merthyr Tydfil, which established that the English courts can require parties to engage in ADR, the Civil Procedure Rule Committee (CPRC) has commissioned a consultation to gather opinions on the optimum way of incorporating the courts’ power to compel ADR into the Civil Procedure Rules (CPR).

Churchill decision

In this landmark case, Mr Churchill discovered Japanese knotweed in his garden. The defendant local authority admitted to treating knotweed on adjacent land but denied responsibility for the encroachment of the knotweed on to Mr Churchill’s property, directing him to the local authority’s internal complaints procedure. Mr Churchill chose to issue proceedings instead.  

The Court of Appeal ultimately confirmed that courts can mandate ADR (including by way of the kind of complaints procedure in question), provided that:

  1. the claimant’s right to a judicial hearing is not impaired; and
  2. it is proportionate to settle the dispute fairly, quickly and at a reasonable cost.

Mandatory ADR in small claims

After the Churchill decision, mandatory mediation was introduced in small claims in a ground-breaking development for the UK civil justice system. Since 22 May 2024, parties in money claims up to the value of £10,000 must take part in a free one-hour mediation appointment provided by the courts’ Small Claims Mediation Service.

It is predicted that the Small Claims Mediation Service will result in an impressive 20,000 small claims being settled out of court each year, saving parties the time and costs of unnecessary litigation.

CPRC consultation

Also flowing from the Churchill decision, the CPRC commissioned a consultation seeking feedback on several proposals, including changes to:

  1. the overriding objective in CPR 1.1, adding that dealing with a case justly and at proportionate cost includes, so far as practicable, using and promoting ADR;
  2. the courts’ duty and powers of management at CPR 1.4 and 3.1, clarifying that judges may order and encourage parties to participate in ADR;
  3. the fast, intermediate and multitrack regime at CPR 28 and 29, requiring courts to consider ordering or encouraging ADR in these tracks; and
  4. costs rules, adding into CPR 44 that failure by a party to comply with an order for ADR or unreasonable failure to participate in ADR proposed by another party would be party conduct to be considered when deciding a costs order.

The consultation closed a few weeks ago and the consultation report will now be released in due course, setting out the drafting approach which will be followed.

Mediation standards board

The government consultation report of last year in relation to the introduction of compulsory mediation in small claims had concluded that introducing statutory regulation of mediation was unnecessary. The consultation report noted that the existing self-regulatory system was well-placed to work with the government to promote standards and consistency.   

On 10 May 2024, mediator membership organisation the Civil Mediation Council (CMC) announced that the CMC will establish a mediation standards board which will operate independently of the main CMC board and have its own chairperson. This new board will be responsible for advising on and developing standards for mediators and trainers, and it will take over the CMC registration and standards committee's current responsibilities, including the complaints process.

The CMC is also considering creating a separate board to establish minimum standards for mediators involved in court-integrated or court-directed mediation. This initiative aims to ensure that users can access appropriately trained and insured mediators, especially if mandatory mediation is in future extended to higher value claims.

Comment

Government and judicial support for ADR has already led to significant change in the civil justice system, including the Small Claims Mediation Service launched this year, which is a welcome encouragement to parties to settle lower value disputes out of court where possible. As for higher value claims, the CPRC’s current proposals alone are arguably not dramatic, as the courts already have the power to impose cost sanctions for parties who refuse to mediate unreasonably. It remains to be seen whether the new mandatory mediation approach for small claims will be considered for higher value claims, which the consultation report of last year signalled as a possibility.

On mediator standards, it is not yet clear how much difference a mediation standards board will make, given the level of mediation experience in the UK, with many mediators already having received training and accreditation through CMC-recognised organisations, such as CEDR.  However, the proposal is certainly further evidence of an increased focus on the value of ADR.