Sir Geoffrey Voss was speaking the November 2024 Civil Mediation Council Conference about how mediation is now enshrined within the court process as a more appropriate form of dispute resolution for achieving successful outcomes in so many disputes.
A year after Sir Geoffrey presided over the Court of Appeal case of Churchill v Merthyr Tydfil County Borough Council (Appeal No: CA-2022-001778) in November 2023, the repercussions of Churchill now form part of the Civil Procedure (Amendment No. 3) Rules 2024 which came in to effect on 1st October 2024.
The CPR amendments elevate the court’s general historic expectation that parties should engage in alternative dispute resolution (ADR), rather than pursing litigation, to an enshrined procedural stance enabling the judiciary to promote ADR and pause (stay) proceedings if necessary to ensure parties engage in mediation and other forms of DR where appropriate. The duty to actively case manage now includes “ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution.” CPR 1.4 (e) and the court’s general powers of management now also include the ability to “order the parties to engage in alternative dispute resolution” CPR3.1 (2)(o). In addition case management allocation to the fast track (CPR 28.7 (1)(d); intermediate track (CPR 28.14 (1)(f); or multitrack CPR 29.2 (1A) requires the court to consider “whether to order or encourage the parties to engage in [ADR]”.
The new Civil Procedure Rule amendments now requiring pro-active court case management not only regarding justice and proportionality but now recognising the importance of promoting or using alternative methods of dispute resolution (ADR) (CPR 1.1) take effect throughout the duration of a claim. These amendments are also in the context of the May 2024 ‘automatic referral’ to mediation in small claims (under £10k) and the extensions to civil money claims that also takes effect this month. This is in addition to the pre-action protocol reform (CJC report, 2023) calling for compulsory ‘settlement discussions’ prior to commencing proceedings as well as calls for compulsory mediation in SEND disputes and family matters.
ADR is here to stay and, for those who are still resistant to it, the costs implications of not engaging in ADR are now addressed under CPR Part 44.2(5). From 1st October 2024, when considering costs, the court will have regard to whether a party failed to comply with an order for ADR, or unreasonably failed to engage in ADR when exercising its general costs discretion in respect of the parties conduct. It’s time for letters of engagement to spell out to clients the new expectations of ADR engagement from the outset of all civil cases to effectively manage client expectations of what lies ahead when considering litigation.