The Centre for Effective Dispute Resolution reported in 2023 that mediation in England and Wales had reached a 92% overall settlement rate across 17,000 mediations per year, with 73% settling on the same day. Those figures raise an uncomfortable question for any legal system built on the primacy of courts: if Alternative Dispute Resolution (ADR) in Common law countries, a Legislative Review reveals processes this effective, why did the law resist mandating them for so long?
The answer shifted dramatically between 2023 and 2025. The Court of Appeal decided Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416, the Civil Procedure Rules were amended to embed ADR as a core objective of civil justice, and Parliament enacted the Arbitration Act 2025. Together, these developments mark a watershed in how common law systems understand the relationship between courts and alternative processes. This article traces that legislative and doctrinal evolution primarily through the lens of England and Wales, with comparative reference to other common law jurisdictions. The focus is on the statutes, case law, and scholarly debate surrounding the central question: when should participation in ADR be compulsory?
Origins and Spread of ADR Across Common Law Systems
ADR's modern institutional history begins not in England but in the United States. At the 1976 Pound Conference in St Paul, Minnesota, Professor Frank Sander proposed the "multi-door courthouse," a vision of courts as dispute resolution centres offering multiple pathways, not merely trial. That concept catalysed the growth of court-annexed mediation and arbitration programmes across American federal and state courts through the 1980s and 1990s.
The diffusion to other common law jurisdictions followed a consistent pattern. Court congestion and access-to-justice concerns drove reform in England, Australia, Canada, and New Zealand. Each jurisdiction adapted ADR to its own procedural culture, but common law systems shared philosophical preconditions that made ADR a natural fit: party autonomy, freedom of contract, and pragmatic procedural flexibility.
Australia established its National Alternative Dispute Resolution Advisory Council in 1995, embedding ADR into federal court practice. Hong Kong enacted the Mediation Ordinance (Cap. 620) in 2013 to support its growing role as an Asia-Pacific dispute resolution centre. Singapore invested heavily in arbitration infrastructure, positioning the Singapore International Arbitration Centre as a competitor to London and Paris by the early 2010s. Canada adopted province-by-province mandatory mediation rules, with Ontario's 1999 mandatory mediation programme for Toronto and Ottawa becoming a widely studied model.
Each of these jurisdictions confronted the same tension between encouraging ADR and preserving access to courts, but resolved it at different speeds.
England and Wales moved more cautiously. Lord Woolf's 1996 report, "Access to Justice," recommended judicial case management powers that would include encouraging ADR, and the Civil Procedure Rules 1998 gave effect to those recommendations. CPR 1.4(2)(e) imposed a duty on courts to encourage parties to use ADR where appropriate. But encouragement is not compulsion, and for nearly three decades the English system occupied an uneasy middle ground, promoting ADR without requiring it.
The ADR Toolkit: Mediation, Arbitration, Conciliation, and ENE
ADR is not a single process but a family of mechanisms, each with distinct legal foundations and degrees of formality. Four processes dominate English civil and commercial practice, each carrying different implications for party autonomy and judicial oversight.
Mediation
A neutral third party assists the disputants in negotiating a resolution. The mediator has no power to impose an outcome. England and Wales have no standalone Mediation Act; mediation operates within the framework of CPR Part 26 directions and judicial encouragement. The confidential character of mediation is protected by the without-prejudice rule, confirmed in Farm Assist Ltd (In Liquidation) v Secretary of State for Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC), where Ramsey J held that a mediator cannot be compelled to give evidence about what occurred during the mediation. The CEDR 2023 Mediation Audit found that 64% of mediations were conducted online, reflecting a permanent shift in practice accelerated by the pandemic.
Arbitration
Arbitration is adjudicative and produces binding awards. The Arbitration Act 1996, s.1, establishes three foundational principles: fair resolution by an impartial tribunal without unnecessary delay or expense; party freedom to agree how disputes are resolved, subject to public interest safeguards; and no court intervention except as the Act provides. The Arbitration Act 2025 now supplements and modernises this framework.
Conciliation
Conciliation sits between facilitation and evaluation: the conciliator may propose settlement terms, unlike a pure mediator. In employment law, ACAS Early Conciliation is the most significant example. Section 18A of the Employment Tribunals Act 1996 makes it a mandatory pre-claim step for most employment tribunal claims. A prospective claimant must notify ACAS and engage with conciliation before issuing proceedings.
Early Neutral Evaluation (ENE)
ENE involves a neutral evaluator, often a judge, providing a non-binding assessment of the merits. CPR 3.1(2)(m) and (p) empower courts to order ENE as a case management tool. In Lomax v Lomax [2019] EWCA Civ 1467, the Court of Appeal held that a court could order ENE even where one party objected. Moylan LJ reasoned that the power fell within the court's general case management discretion and did not compel settlement, only informed evaluation.
The Halsey Era: Voluntary Encouragement and the Article 6 Question (2004-2023)
The decision that shaped English ADR policy for two decades was Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576. Dyson LJ established six factors for determining whether a party's refusal to mediate was unreasonable: the nature of the dispute, the merits of the case, whether other settlement methods had been attempted, the cost of mediation relative to the claim, any delay caused by mediation, and whether mediation had a reasonable prospect of success. Costs consequences attached to unreasonable refusal. In practice, the high threshold meant that successful costs sanctions for ADR refusal remained rare.
More consequentially, Dyson LJ stated in obiter dictum that compelling parties to mediate would violate Article 6 ECHR, which guarantees the right of access to a court. This proposition was never the ratio, yet it cast a long shadow. Courts treated it as authoritative, and the practical effect was stark: parties could refuse ADR with relative impunity unless a judge found all six factors weighed against them. The result was a two-decade settlement in which ADR could be encouraged and incentivised through costs sanctions, but never required.
Two subsequent decisions tightened the Halsey framework. In Burchell v Bullard [2005] EWCA Civ 358, Ward LJ described mediation as no longer a "Rolls Royce solution" to be deployed only in large cases, and imposed costs consequences on a party who had unreasonably refused ADR in a modest building dispute. More significantly, PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288 extended the principle: Briggs LJ held that silence in response to a mediation proposal is, in general, itself an unreasonable refusal, even without express rejection. Together, these decisions demonstrated that Halsey's costs incentive had real teeth, even as the prohibition on compulsion remained intact.
The Civil Justice Council challenged this orthodoxy in its 2021 report, "Compulsory ADR." The CJC concluded that mandatory ADR is lawful under both domestic and ECHR principles, and that the Article 6 point in Halsey was "wrongly determined." Requiring participation in a non-determinative process does not impair the right to a judicial determination, provided the court remains available as a final resort. The CJC drew support from the CJEU's decision in Rosalba Alassini v Telecom Italia (C-317/08), where the European court upheld mandatory ADR as compatible with effective judicial protection. That reasoning would prove decisive.
Churchill v Merthyr Tydfil and the CPR 2024 Reforms: The Shift to Compulsion
Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416 dismantled the doctrinal barrier that Halsey had erected. Sir Geoffrey Vos, the Master of the Rolls, held that courts can lawfully order parties to engage in ADR without breaching Article 6 ECHR, provided the order does not impair the claimant's right to have the dispute determined by a court. The Halsey obiter was declared no longer applicable. The judgment was unanimous and emphatic.
The legislative response was swift. CPR Amendment No.3 Rules 2024, in force from 1 October 2024, amended the overriding objective in CPR 1.1 to include "promoting or using alternative dispute resolution." CPR 3.1(2) gained explicit power for courts to order ADR participation. These were not minor procedural adjustments. They reconceptualised the court's function from passive adjudicator to active dispute resolution manager.
Mandatory mediation for small claims followed. From 22 May 2024 for paper and legacy proceedings, and from 5 November 2024 for claims on the Online Civil Money Claims platform, defended money claims valued at £10,000 or below became subject to automatic referral to free mediation through HMCTS. Parties must attend a one-hour session. They are not compelled to settle, but they are compelled to participate. Early data from HMCTS suggests high engagement rates, though settlement outcomes are not yet publicly reported in detail.
Family law moved in parallel. Amendments to the Family Procedure Rules took effect in April 2024, requiring courts to consider non-court dispute resolution (NCDR) at every stage of proceedings. Costs consequences attach to unreasonable refusal to engage with NCDR. The terminology shift from "ADR" to "NCDR" in the family context signals that these processes are not "alternative" but primary.
This cluster of reforms represents the most significant reconfiguration of English civil procedure since the Woolf reforms of 1998. The court is no longer merely a venue for adjudication but a gateway to the process most suited to the dispute.
The Arbitration Act 2025: Modernising England's Flagship ADR Statute
The Arbitration Act 1996 gave England and Wales one of the most respected arbitration frameworks in the world. London's position as a global arbitration seat owes much to the Act's clarity, its respect for party autonomy, and its limited grounds for judicial intervention. ICC data for 2024 confirmed London as the most frequently chosen seat for ICC arbitrations globally, ahead of Paris and Singapore.
The Law Commission's final report of September 2023 identified six areas requiring legislative attention. The resulting Arbitration Act 2025 received Royal Assent on 24 February 2025 and came into force on 1 August 2025.
The reforms are targeted rather than transformative. First, the Act establishes a default rule that the law of the arbitral seat governs the arbitration agreement. This resolves the conflicting authority generated by Enka Insaat Ve Sanayi AS v OIC Europe Ltd [2020] UKSC 38, in which the UK Supreme Court wrestled with determining which law governed an arbitration clause in the absence of an express choice, producing a complex majority judgment that practitioners found difficult to apply consistently. Second, arbitral tribunals gain a statutory power of summary disposal, enabling them to dismiss claims or defences with no real prospect of success. Third, arbitrators are placed under a statutory ongoing duty of disclosure, codifying obligations previously grounded in case law and institutional rules.
Fourth, arbitrator immunity is expanded. Fifth, the procedure for jurisdictional challenges under s.67 of the 1996 Act is reformed to prevent full rehearings. Sixth, courts gain power to order relief against third parties in support of arbitral proceedings.
London competes with Paris, Singapore, and Hong Kong for international arbitration work. The 2025 Act signals continued commitment to a modern, efficient arbitral framework. Positioned alongside Churchill and the CPR 2024 reforms, it forms part of a coherent legislative moment in which ADR has moved from the periphery to the centre of English dispute resolution policy.
Brexit and Cross-Border ADR: The Post-EU Landscape
Brexit fractured England's cross-border ADR framework in ways domestic reforms cannot fully repair. The EU Mediation Directive 2008/52/EC had established a harmonised framework for cross-border mediation within the EU, including automatic enforceability of mediated settlement agreements across member states. The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 revoked the Directive's domestic implementation.
The losses are specific: mediated settlement agreements in cross-border disputes no longer benefit from automatic EU-wide enforceability. Parties to Anglo-European commercial mediations must rely on contractual enforcement in each relevant jurisdiction, a more uncertain and expensive process. The UK also lost access to the EU Online Dispute Resolution platform for consumer disputes.
Some EU-derived protections survived. The Consumer ADR Regulations 2015, which transposed the EU ADR Directive for consumer disputes, remain in force as retained EU law. Domestic consumer ADR schemes operated by ombudsman services continue to function.
The Singapore Convention on Mediation offers a partial remedy. Opened for signature in 2019, the Convention provides a framework for cross-border enforcement of mediated settlement agreements among signatory states. As of 2025, 57 states have signed and 12 have ratified. The UK signed but has not yet ratified. The Hague Choice of Court Convention, to which the UK acceded in 2020, provides a separate enforcement pathway for judgments arising from exclusive jurisdiction clauses, but does not cover mediated settlements directly.
The result is a paradox. Brexit weakened England's cross-border ADR position at the moment domestic reforms were strengthening the internal framework. Other common law jurisdictions, notably Australia and Canada, never had EU integration and have not faced this disruption. England's post-Brexit position is, in one sense, more aligned with the broader common law approach: domestically robust, internationally dependent on bilateral arrangements and treaty frameworks.
Critical Perspectives: Access to Justice and the Limits of Compulsion
The efficiency case for mandatory ADR is powerful. CEDR's settlement data, combined with a tribunal backlog that reached 144,000 cases by May 2023, makes the pragmatic argument difficult to resist. Courts are overwhelmed. ADR works. Mandating it reduces cost and delay.
But efficiency is not justice. Bryan Clark of Lancaster University argued in Amicus Curiae (2022) that mandatory mediation risks creating a two-tier system. Less wealthy parties are diverted from courts into processes where informational and power imbalances go unchecked, while well-resourced parties retain capacity to access full adjudication when it suits them. The concern is structural, not merely procedural.
McKayla Bogda, writing in the Missouri Journal of Dispute Resolution (2024), framed the English reforms as a "paradigm shift" and questioned whether settlement-oriented processes adequately develop legal norms. If disputes resolve privately through mediation, the common law loses the judicial decisions that clarify and develop doctrine. This cost is real, particularly in unsettled areas of law where judicial guidance shapes practice for thousands of subsequent disputes.
The safeguards built into the current framework are meaningful. Churchill emphasised proportionality. The CPR reforms preserve the ultimate right to trial. Mandatory mediation in small claims compels participation, not settlement. These distinctions matter, and they distinguish the English approach from more coercive models.
The success of mandatory ADR must be measured not solely by settlement rates but by whether it genuinely improves access to justice for those currently excluded from both courts and ADR. If the effect is to divert the least powerful litigants away from judicial scrutiny, the reforms will have failed on their own terms.