Can a Court Make You Mediate? ADR After Churchill and the 2024 Rule Changes

Key takeaways

• Yes, it can: Since Churchill v Merthyr Tydfil in 2023, the English courts have had the power to order parties to engage in mediation or another form of ADR, or to pause proceedings while they do so.
• The rules now say so: Since 1 October 2024, the Civil Procedure Rules expressly allow the court to order ADR and require it to consider ADR when giving directions.
• Refusing has a price: An unreasonable failure to engage in ADR, or a failure to comply with an ADR order, is now an express factor when the court decides costs.
• The process must be proportionate: An order must not impair the very essence of the right to a fair trial and must be proportionate to achieving a fair, quick and cost-effective resolution.

For almost twenty years, commercial parties in England could refuse to mediate and simply take their chances on costs. The courts encouraged mediation, sometimes robustly, but would not compel it. That has now changed. A party that rejects mediation out of hand, or treats it as a box-ticking exercise, risks a court order requiring it to take part and a costs penalty if it does not engage.

This article explains the change in the law, the rule amendments that followed, and what businesses should do when mediation is proposed, whether they are bringing or defending a claim.

What was the position before Churchill?

In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, the Court of Appeal said that compelling unwilling parties to mediate would obstruct their right of access to the court, and that “the court’s role is to encourage, not to compel” (at [9] to [11]). The court could, however, penalise a successful party in costs if it had unreasonably refused to mediate. It identified factors relevant to whether a refusal was unreasonable, including the nature of the dispute, the merits, whether other settlement methods had been tried, whether the costs of ADR would be disproportionate, any delay, and whether mediation had a reasonable prospect of success (at [16]).

What did Churchill decide?

In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, a homeowner sued his local council over Japanese knotweed spreading from its land. The council asked the court to pause the claim so that he would first use its internal complaints procedure. The appeal was heard by the Lady Chief Justice, the Master of the Rolls and Birss LJ, reflecting its wider importance.

The Court of Appeal held that the relevant passages in Halsey were not part of the essential reasoning of that case and were not binding. It then held that the court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process, provided that the order does not impair the very essence of the claimant’s right to proceed to a judicial hearing and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.

The court declined to lay down fixed rules for when an order should be made, but noted factors that may be relevant, including the costs of ADR relative to the parties’ resources and the value of the claim, whether there is a realistic prospect of settlement, any significant imbalance between the parties, the reasons given for not wishing to mediate, and the reasonableness and proportionality of any sanction.

How have the Civil Procedure Rules changed?

The Civil Procedure (Amendment No. 3) Rules 2024 amended the rules from 1 October 2024 in response to Churchill. In particular:

• The overriding objective. Dealing with a case justly and at proportionate cost now expressly includes “promoting or using alternative dispute resolution” (CPR 1.1(2)(f)).
• Case management. The court’s duty to manage cases now includes “ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution” (CPR 1.4(2)(e)), and its general powers include ordering the parties to engage in ADR (CPR 3.1(2)(o)).
• Directions. When giving directions in fast track, intermediate track and multi-track cases, the court must consider whether to order or encourage ADR.
• Costs. In deciding costs, the court’s assessment of conduct now includes “whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution” (CPR 44.2(5)(e)).

Does this apply to commercial and technology disputes?

Yes. The rule changes apply across the civil courts, including the Business and Property Courts. Factors such as the parties’ resources and the cost of ADR relative to the value of the claim will often point towards ADR in a substantial commercial dispute. Disputes about failed technology projects, delivery delays and payment are also the kind of dispute in which mediation commonly succeeds, because the parties often have a continuing relationship or a shared interest in limiting cost and publicity.

Mediation is not the only option. The court’s power extends to any appropriate non-court-based process, including early neutral evaluation and, where suitable, expert evaluation of a technical issue. The process chosen should fit the dispute.

Does it apply in arbitration?

The Civil Procedure Rules govern court proceedings, not arbitration. An arbitral tribunal’s powers come from the parties’ agreement, the applicable rules and the Arbitration Act 1996. Many institutional rules encourage settlement, and a tribunal can take a party’s conduct into account in deciding costs, but the Churchill power to order ADR is a power of the court. If you want mediation to be a required step before arbitration, the arbitration clause should say so.

What should you do when mediation is proposed?

A refusal is now a significant decision that should be made deliberately and recorded with reasons. A party that considers mediation premature should say why, and what it needs first, such as key documents or an expert report. A party that wants to mediate should propose it in writing, with a realistic timetable and a suggested mediator, so that the offer can later be shown to the court.

Mediation is confidential and without prejudice. What is said cannot generally be used later in the proceedings, which allows the parties to speak frankly. The mediator has no power to impose a result: any settlement must be agreed, and is usually recorded in a binding written agreement on the day.

Mediation and ADR: a practical checklist

When a dispute arises, businesses are likely to need to consider:

• Contract terms. Whether the contract requires negotiation or mediation before proceedings, and whether that requirement is enforceable.
• Pre-action conduct. Engaging with ADR before issuing a claim, as conduct before proceedings is relevant to costs.
• Timing. Whether the issues are clear enough to mediate, and what information each side needs first.
• Process. Whether mediation, early neutral evaluation or another process is best suited to the dispute.
• Responding to proposals. Replying promptly and in writing to any ADR proposal, with reasons if you decline or want to defer it.
• Authority. Ensuring someone with authority to settle attends the mediation.
• Recording settlement. Having a draft settlement agreement ready, so that any deal can be signed on the day.

At Maybrook Law, we represent clients in mediations and settlement negotiations as well as in court and arbitration, and we advise on when ADR is likely to work and how to use it to best effect. If you are considering or facing a proposal to mediate, we would be pleased to help you prepare and protect your position.

This article reflects the law as at 30 October 2026. Our insights, articles and guides do not, and are not intended to, constitute legal advice or be an exhaustive review of all legal developments. Although every effort is made to ensure that the information provided in this article is accurate as of the publication date, please be aware that this area of law may be subject to change. Please seek legal advice before applying the information provided to any specific circumstances, transactions or legal issues.