Published On: 14th August 2026
Authored By: Ayesha Salma Yusoof
Middlesex University Dubai
Abstract
Alternative Dispute Resolution (commonly referred to as ADR) has evolved over decades into a global practice and a core structural element that redefined the functioning of civil procedures. With a primary focus on the English legal system, a practice which began under the Woolf reforms, as a discretionary encouragement to be included in the overriding objectives, has transformed, following the Court of Appeal’s decision in Churchill v Merthyr Tydfil County Borough Council (2023), into a judicial sanctioning power which can compel parties into ADR. This article seeks to critically evaluate the doctrinal principle of ADR with relevant supporting authority, as well as address ADR’s effectiveness in terms of cost and time and interrogate the issues concerning access to justice, enforceability and procedural fairness. The article concludes by exploring the future scope of ADR normalisation whilst reflecting on how the encouragement of ADR as a quasi-mandatory procedure could clarify tensions surrounding efficiency and access to Article 6 of the ECHR relating to a fair trial.
Introduction of ADR and its Framework in England and Wales
The civil justice system in England and Wales revolves around a fundamental constitutional guarantee: the right to a fair trial, including access to a court, under Article 6 of the European Convention on Human Rights.[1] However, in the mid-1990’s, the right to engage in litigation evolved to be considered a last resort rather than a direct starting point for dispute resolution. This was supported in Lord Woolf’s Access to Justice: Final Report, which highlighted that the excessive costs, delays, and complexity of litigation being a default option would likely strain the functionality of the civil justice system.[2] Consequently, Alternative Dispute Resolution (ADR), which focuses on resolving disputes between parties without directly taking proceedings to court, was suggested as a proportionate corrective measure to minimise this burden.[3]
This proposal was translated into the Civil Procedure Rules (CPR) rule 1.1, focusing on the overriding objective of dealing with cases justly and at a proportionate cost, and rule 1.4(e), which highlights an active case-management duty to encourage parties to use ADR procedures where appropriate.[4] With ADR practice “encouraged” amongst parties, the term has, over time, made this framework discretionary.[5] This meant that even in a situation where ADR is the best remedy, courts could not force a reluctant litigant to engage in mediation. However, this boundary shifted when the Civil Procedure (Amendment No 3) Rules 2024 formally embedded ADR practice into the overriding objective.[6] This explicitly implies an order to promote or use ADR as part of the court’s duty to deal with cases justly and at a proportionate cost.[7] Therefore, the non-compliance of a party to engage in ADR practice would allow the courts to impose a cost sanction.[8] To understand the shift of ADR from encouragement to compulsion, examining case law would be helpful to support this debate.
The Compulsion Debate
The initial ruling governing judicial encouragement of ADR was set by Dunnett v Railtrack (2002), where the Court of Appeal held that a successful party’s unreasonable refusal to engage in ADR could lead to imposing a cost order even if the party was successful at trial.[9] The establishment of cost sanctions for unreasonable refusal acted as a primary mechanism to indirectly encourage ADR practice rather than directly forcing it.[10] On the contrary, Halsey v Milton Keynes NHS Trust (2004) highlighted that refusing to engage in ADR practice is not automatically unreasonable if the circumstances (nature of the dispute, merits of the case, timing of mediation, proportionality of costs) presented to the court make it a reasonable refusal.[11] The obiter held by Lord Justice Dyson stated that forcing ADR practice on unwilling parties would likely infringe their right to access justice under Article 6 of the ECHR.[12] Consequently, this obiter of no compulsion on the parties has stood for nearly two decades. Additionally, PGF II SA v OMFS Company 1 Ltd (2013) held that silence being a response to a party’s invitation to mediate would be considered unreasonable and would likely impose indirect pressure for cost sanctions.[13]
However, the Court of Appeal decision in the case of Churchill v Merthyr Tydfil County Borough Council (2023) dismissed the dictum established in Halsey v Milton Keynes NHS Trust. The case addressed that courts would likely possess the power to order parties to initially engage in a dispute resolution process to settle the dispute quickly, fairly and at a reasonable cost while ensuring that the court’s order does not infringe Article 6 of the ECHR.[14] This framework draws a direct link to the Civil Justice Council 2021 report on Compulsory ADR, which concluded that a compulsory ADR model could be compatible with Article 6 provided that sufficient safeguards are in place.[15] Consequently, the Civil Procedure (Amendment No 3) Rules 2024 explicitly codified ADR as a part of the overriding objective, which reflects the shift of ADR from a permissive encouragement with cost consequences to becoming a judicially sanctioned framework subjected to ensuring a proportional cost and fair trial safeguard.[16]
Effectiveness of ADR in Practice
The effectiveness of applying this framework can be best assessed across three metrics: cost and time efficiency, confidentiality and relationship preservation, and procedural flexibility.
Cost and Time Efficiency
This remains the strongest argument favouring ADR, and mediation in particular, since parties are given an initial opportunity to resolve the matter through negotiations that could open the doors to a mutual settlement. This alternative thereby minimises the chances of undergoing a trial that is both expensive and likely to be delayed, given the existing case backlog in the justice system. Additionally, Sir Rupert Jackson’s Review of Civil Litigation Costs: Final Report indicated that with the cost burden being a central issue of civil litigation, judicial promotion of ADR serves as a potential cost management remedy.[17] Therefore, courts questioning the parties’ participation in the settlement process is a key factor, since no interest towards participation would likely result in potential judicial sanctions towards the non-compliant party. Hence, setting out procedural expectations with financial consequences for non-compliance acts as a way of indirectly encouraging parties to engage in ADR, which serves as an efficient mechanism to avoid potential delays of case backlogs when pushed for litigation.
Confidentiality and relationship preservation
Unlike trials, mediation outcomes are private, which allows matters to be resolved behind closed doors and away from potential prejudice and media scrutiny. This element proves to be particularly valuable for well-known commercial corporations and family law contexts because the negotiation process is unlikely to be publicly documented, which leads to less harm and potentially preserving the existing relationships between the parties.
Procedural flexibility
The process of ADR is such that it is not bound by a precedent or a particular remedy, as seen in trial cases. The settlements are unique as such that they could include apologies, a structured payment term or even a commercial agreement. Additionally, the Online Dispute Resolution movement exhibits this flexibility by designing a more accessible and digital mode of dispute resolution targeting lower-value or litigant-in-person disputes.[18] However, it is important to note that flexibility becomes a genuine benefit only if both parties involved have sufficient technical and legal understanding to negotiate a desirable settlement, because power imbalances could create disparities in bargaining power and potential guarantees on settlements.
Criticisms of ADR in Practice.
Despite ADR being a recommended alternative, implementing such a framework would introduce three serious concerns: power imbalance, enforceability and potential erosion of litigation rights.
Power Imbalance
The assumption that ADR serves as a method that equally benefits both parties is unlikely to be realistic if there is a gap in resources, information, or bargaining power between the parties. Therefore, a well-resourced defendant could treat the mediation process as another platform to exhaust an under-resourced or unrepresented claimant rather than making a genuine compromise towards the settlement. Additionally, Halsey’s dictum reflects the criticism of mandating ADR since this would likely pressure the vulnerable party towards accepting an unfavourable settlement simply to avoid cost sanctions associated with refusing ADR.[19]
Enforceability Gap
Unlike a court judgment, a mediation settlement agreement does not set a precedent since it is in the form of a contract that becomes enforceable in situations of contractual proceedings like breach of contract. The Singapore Convention on Mediation (2019) creates a framework for parties to enforce and invoke settlements that arise in mediation across borders (mainly for international commercial disputes), which closely parallels the New York Convention.[20] Despite the UK undergoing ratification and not yet implementing the Singapore Convention framework, mediation settlements at the moment, both domestically and cross-border, could take longer to bridge the enforceability gap, especially with ADR practices increasingly chosen as an alternative to litigation.[21]
Impact on Article 6
With the Churchill decision making ADR a prioritised element, questions arise about the effect on the right to access a court not being a direct choice because ADR is likely to be a recommended option by the courts unless there is a reason to prove that it is not a suitable choice.[22] This means that a claimant can be compelled into mediation, given the cost sanctions, and still be told that no fair trial right is infringed, even if the settlement doesn’t work out because the parties can choose the next theoretical step of taking proceedings to court. Therefore, this right is theoretically preserved but practically diminished because it no longer protects the litigants’ choice of not choosing to engage in ADR and reach a settlement before choosing to reach a trial judge.
Scope of Future Development
The Singapore Convention on Mediation remains a framework that the UK has yet to ratify and establish full implementation.[23] With the English courts directing a high volume of commercial disputes towards mediation, having this cross-border enforcement mechanism is essential to ensure agreed settlements have a practical impact for international commercial parties. This would also indirectly view cities like London as an attractive choice to facilitate international arbitration processes.
The expansion of the Online Procedure Rules Committee’s digital justice agenda outlines a framework proposing the idea of Online Dispute Resolution (ODR).[24] With this system potentially taking over traditional in-person mediations for lower-value civil claims, fresh questions arise concerning digital access to information and the quality of the dispute resolutions delivered through automated or semi-automated triage systems.
Conclusion
The trajectory of ADR enforcement from Halsey to Churchill reflects a contestable strategy of how courts would direct parties to an alternative dispute mechanism whilst ensuring access to justice is not compromised. The efficiency of ADR is supported with reference to the Jackson costs review and sector-specific practices, which collectively are persuasive points. However, efficiency of ADR alone is not the only value that the civil justice system aims to foster. Ensuring that ADR practices in the UK do not compromise the substantive right of access to a court and can be structurally enforceable at an international level, through frameworks like the Singapore Convention, highlights that the design of a compulsory ADR framework must co-exist in a practically viable manner. Whether the next decade brings further amendments to legislation or challenges the precedent set in the Churchill case, the proportionality of finding a balance between compromise and compulsion is a matter that remains unsettled.
References
[1] European Convention on Human Rights (ECHR), art 6.
[2] Hans Fabricius, ‘Access to Justice: The Woolf Report’ (Consultus, November 1996) 108 < https://www.gcbsa.co.za/law-journals/1996/november/1996-november-vol009-no2-pp108-115.pdf > accessed 21 July 2026.
[3] Ibid.
[4]Civil Procedure Rules 1998, rr 1.1, 1.4(e) < https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01#1.1> accessed 21 July 2026.
[5] Ibid.
[6] Civil Procedure (Amendment No 3) Rules 2024, SI 2024/839 <https://www.legislation.gov.uk/uksi/2024/839/made > accessed 21 July 2026.
[7] Ibid.
[8] Ibid.
[9] Dunnett v Railtrack [2002] 1 WLR 2434.
[10] Ibid.
[11] Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576.
[12] Ibid, para 9 (Dyson LJ).
[13] PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288.
[14] Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.
[15] Civil Justice Council, ‘Compulsory ADR’ (Judiciary of England and Wales, July 2021) <https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf> accessed 21 July 2026.
[16] Civil Procedure (Amendment No 3) Rules 2024 (n.6).
[17] Sir Rupert Jackson, ‘Review of Civil Litigation Costs: Final Report’ (Ministry of Justice, December 2009) ch 36 < https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf > accessed 21 July 2026.
[18] Online Procedure Rule Committee, Online Dispute Resolution for Low Value Civil Claims (Judiciary of England and Wales, February 2015) < https://www.judiciary.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf > accessed 21 July 2026.
[19] Dyson LJ, para 9 (n.12).
[20] United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) (December 2018) <https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements> accessed 21 July 2026.
[21] Ministry of Justice, The Singapore Convention on Mediation: Consultation Response (March 2023) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1139604/the-singapore-convention-on-mediation-consultation-response.pdf> accessed 21 July 2026.
[22] Churchill v Merthyr Tydfil County Borough Council (n.14).
[23] United Nations Convention on International Settlement Agreements Resulting from Mediation (n.20).
[24] Online Procedure Rule Committee (n.18).
