Mediating your dispute: Developments and trends in ADR in England and Wales

Parties have always been encouraged to explore ways to resolve their disputes outside litigation. There has been a significant shift in how litigation is pursued in England and Wales, with the move to integrate alternative dispute resolution (ADR) into the process to help facilitate resolution at the earliest opportunity.



In this podcast, Oliver Rawkins (https://www.reedsmith.com/en/professi...) , Catherine Lewis (https://www.reedsmith.com/en/professi...) and George Pissarro (https://www.reedsmith.com/en/professi...) discuss the recent shift in the move to more formally integrate ADR into the proceedings, including the impact of the Court of Appeal’s decision in Churchill v. Merthyr Tydfil County Borough Council in 2023 and further recent jurisprudence on ADR issues.



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Transcript: 



Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.



Ollie: Welcome to the Disputes in Perspective podcast series. My name is Ollie Rawkins. I'm a partner in Reed Smith's Global Commercial Disputes Group in London. And today I'm joined by two colleagues, Catherine Lewis and George Pissarro, to discuss recent developments in the approach to Alternative Dispute Resolution, or ADR, here in England. So I just wanted to sum up first the ground we're going to cover today. First, we're going to give a brief overview of ADR itself. We're then going to look at one of the most significant decisions in ADR in recent years. This is the Churchill and Merthyr Tydfil County Borough Council case from 2023. We're going to look at some procedural changes that are either going to be implemented or in fact have been implemented already. Then we're going to look at a couple of court decisions from 2024 and how they reflect or illustrate the approach to ADR here in England and in English courts. Finally, we're going to look to the future and see what trends or themes in relation to ADR might be on the horizon. So first, I'm going to give a very brief overview of ADR. This is a bit of initial background to those listeners who may be less familiar with ADR as a concept. So it encompasses a variety of methods which were designed to resolve disputes. Without resorting to litigation or where proceedings are already on for bringing that litigation to a consensual resolution. So, just to be clear, we're looking at the types of ADR in play in the context of court proceedings. ADR processes can be binding, meaning that the outcome is final and can be enforced, or alternatively they can be non-binding, which means that the parties can proceed with litigation to resolve the dispute if they're not satisfied with the outcome of the process. Non-binding ADR processes may involve third-party intervention, but do not have to. So the most commonly used methods of ADR include mediation and negotiation, early neutral evaluation and expert determination. The pros and cons of ADR depend to a large extent on the specific mechanism in question and may not apply across the board. However, generally speaking, the benefits are seen to be that it saves time, it saves costs, offers flexibility and choice, confidentiality, and it can help maintain positive business relationships. And even if the ADR process in question doesn't itself result in settlement it might produce or have other benefits for the parties. It might narrow the issues of dispute, test the strengths and weaknesses of each party's case and establishing an ADR process and one that the parties can agree to and then engaging in it can also build or re-establish lines of negotiation or dialogue between the parties and ultimately increased the prospects of settlement being reached before trial. As a general principle, mediation is heavily endorsed and encouraged by the English legal system. However, until recently, the case law indicated that the courts would not compel parties to mediate. It was a matter of discretion for the parties involved. Now, to a certain extent, that has changed. I'm going to hand over to George, who's going to talk us through the a relatively recent decision from the Court of Appeal that has changed this position.



George: Thanks, Ollie. So, as you mentioned, on the 29th of November 2023. The Court of Appeal handed down its judgment in the case of Churchill and Merthyr Tydfil County Borough Council, and the judgment is a landmark in the context of ADR. So, the headline questions were whether a court can lawfully order the parties to court proceedings to engage in a non-court-based dispute resolution process? And if so, in what circumstances it should do so? The underlying claim was for nuisance all...