How we can advise and guide you through the Alternative Dispute Resolution process

In a bid to settle disputes effectively and cost efficiently, the UK Courts have been advocating for compulsory mediation for quite some time.

According to the Ministry of Justice, around 36,000 separating families could resolve their issues quicker and easier out of Court every year – if they were to take part in mediation, the process where disputes are resolved by using a neutral third party to facilitate discussion and negotiation.

Following a landmark ruling, mediation also looks set to have major role to play in the future of civil and commercial litigation.

If you find yourself embroiled in any dispute, whether issued in the courts or not, our team of experienced litigators can assist you throughout the process. Chris Clayton, our accredited mediator, is an experienced Commercial Solicitor who is well placed to represent you in mediations as well as in the courts.

Should you need his help or advice, please call 0191 5666 500 or email law@longdens.co.uk to discuss your dispute in confidence.

What is the latest development on compulsory ADR?

On 29 November 20023, the Court of Appeal handed down judgment in James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.

The case itself concerned allegations of nuisance. Mr Churchill alleged that the local authority had allowed Japanese knotweed to spread onto his land.

The local authority argued that the claim should be stayed until Mr Churchill has used its internal complaint procedure.

For the last 20 years or so, the approach taken by the courts was to encourage parties to engage in alternative dispute resolution, however, they could not go so far as to compel parties to engage.

In Churchill, the Court of Appeal has held that the courts can, in fact, compel the parties to engage in alternative dispute resolution and it can stay proceedings whilst that process occurs, provided it does not deprive a party’s access to judicial redress in the courts.

The court did not fix principles to apply when determining whether alternative dispute resolution should be ordered or what form that alternative dispute resolution should take. The reason being that both the parties and the judge should be free to consider whether and what form alternative dispute resolution would be appropriate in each case balancing the need to achieve a fair, speedy and cost-effective solution to the dispute and therefore the legal proceedings.

What does this mean for our clients?

Parties have always been free to engage in alternative dispute resolution and they have been able to agree stays in court proceedings to explore resolutions. The difference now is that the court has the power to order the parties engaged in a dispute to engage in alternative dispute resolution, such as mediation.

The Master of the Rolls has been advocating for compulsory mediation for quite some time and it would appear that this is the general direction of travel in litigation.

Parties usually have different reasons to engage in mediation.

In the vast majority of cases, parties on both sides have a genuine desire to explore assessment. On occasion, one or more parties will agree to attend mediation with the intention of finding out information they did not know prior to the mediation. Others might agree to engage to avoid cost consequences of failing to engage.

Whatever the motivation for engaging in alternative dispute resolution, it used to rely on both parties consenting to the process. The effect of Churchill is that the parties will have to engage in alternative dispute resolution whether they want to or not.

Whilst the court can compel engagements in alternative resident dispute resolution, it cannot compel settlement at mediation – the parties still have the right to proceed in litigation and to a final trial if they are not happy with any proposed settlement offers during the alternative dispute resolution process.

Given the cost benefits and the flexibility of mediation, in terms of freedom to craft settlements that courts might not be able to order, this decision is a helpful move towards channeling even more cases along a route that is likely to achieve results all parties can live with.

The effect of this is that the parties will have the opportunity to resolve the disputes quicker, more cost-effectively and with a greater degree of flexibility as to the final agreed resolution.

How can we help with disputes and mediation?

Our team of experienced litigators can assist you with any civil or commercial dispute, whether it is issued in the courts or not, including resolution outside of the court process, such as mediation.

As well as being well placed to represent you in the courts, our Commercial Litigation team can represent you and advise you through the mediation process.

Chris Clayton, our in-house Solicitor Advocate and accredited mediator, has gained invaluable experience of the mediation process during the last 10 years, meaning he is well placed to act in your best interests.

If you could benefit from receiving help or advice to resolve a dispute, email law@longdens.co.uk or call 0191 5666 500 for a friendly discussion. There is no obligation to pursue legal action and all information will be treated in the strictest confidence.

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