Thought leadership

Mandate to Mediate: compelled Alternative Dispute Resolution in England

01 October 2025

The 2023 Churchill v Merthyr Tydfil County Borough Council Court of Appeal decision and 2024 changes to the Civil Procedure Rules permit judges to compel alternative dispute resolution (ADR). This is a sea change in English practice. We draw on insights from leading English mediators gained in our Ashurst mediation survey to predict that scepticism about compelled mediation will be overcome, and to explore what works and does not work in ADR.

A bigger role for ADR in dispute resolution

Mediation, along with other forms of non-court or arbitration based dispute resolution, have traditionally been viewed as sitting at the fringes of the English civil justice system. However, following the 2023 Court of Appeal decision in the case of Churchill v Merthyr Tydfil County Borough Council and subsequent changes to the Civil Procedure Rules (CPR) in October 2024, ADR is likely to play a markedly bigger role in civil dispute resolution.

For the first time, judges are expressly empowered to compel parties to engage in mediation or other forms of ADR. This marks a significant departure from the previous approach, which was based on the understanding that compelling parties to engage in such processes would improperly impinge on their right of access to the courts. That understanding derived from the 2004 Court of Appeal case of Halsey v Milton Keynes General NHS Trust.

The change has prompted debate about the effectiveness of compelled mediation and whether English legal culture will adapt. Drawing on our Ashurst mediator survey 2025, which captures the perspectives of 20 leading mediators, we explore why this scepticism is likely to be overcome and what can make mandatory mediation work in practice.

Case summary: Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416

Facts

In Churchill v Merthyr Tydfil County Borough Council, the claimant, Mr Churchill, alleged that Japanese knotweed had encroached onto his property from adjoining land owned by the Council. He alleged that this had caused damage, a reduction in value, and loss of enjoyment. After sending a letter of claim in October 2020, Mr Churchill issued proceedings in nuisance in July 2021. This was despite the Council’s advice that he should first use its internal Corporate Complaints Procedure. The Council applied to stay the proceedings to allow this internal process to be used, but the application was dismissed at first instance, with the judge holding he was bound by Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002. This case was understood to prevent courts from compelling unwilling parties to engage in ADR.

Decision

The Court of Appeal clarified that courts have the power to stay proceedings for, or order, parties to engage in dispute resolution.

The Court of Appeal held that the first instance judge was not, in fact, bound by Halsey on this point. This was because the relevant passages were "obiter dicta", i.e. not part of the essential reasoning of the decision. The Court of Appeal clarified that courts do have the power to stay proceedings for, or order, parties to engage in non-court-based dispute resolution processes. These include internal complaints procedures or mediation. Such orders must not impair the very essence of the claimant’s right to a fair trial (Article 6 European Convention on Human Rights), must be made in pursuit of a legitimate aim, and be proportionate to achieving that aim. The Court declined to set out a fixed checklist of factors for the exercise of this discretion, but noted that the nature of the process and the circumstances of the case will always be relevant. On the facts, the Court did not order a stay at this stage, as circumstances had moved on. But it allowed the appeal in part and encouraged the parties to consider mediation or another form of ADR.

Amendments to the Civil Procedure Rules

With effect from 1 October 2024, the CPR were amended to reflect the Court of Appeal's ruling in Churchill.

Key amendments include an explicit direction in CPR 1 that the overriding objective of dealing with cases justly and at proportionate cost now includes, so far as is practicable, "promoting or using alternative dispute resolution." The courts' duty of active case management has been expanded to include "ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution" (CPR 1.4(2)(e)). The courts' case management powers have also been altered in order to expressly allow the courts to order parties to participate in ADR (CPR 3.1(2)(o)).

The amendments also affect the costs regime: under CPR 44, when assessing a party’s conduct for the purposes of costs, the courts will specifically consider whether it failed to comply with an order for ADR, or unreasonably refused to engage in ADR.

Importantly, the CPR does not define "alternative dispute resolution," leaving it to the parties to select the most appropriate form for their dispute, whether that be negotiation, mediation, ombudsman schemes, or early neutral evaluation.

The case for expanding the use of mediation

Ashurst's Mediator Survey

In our 2025 survey, we sought the insights of 20 top mediators with experience in mediating complex, high value disputes. We surveyed the mediators on a range of topics including settlement rates, best practices, and the role of technical experts in mediation. This data was collected via an online survey between 23 April 2025 and 3 June 2025.

The desire to expand the use of mediation in England and Wales is understandable, given the impressive success rates reported by industry bodies. For example, the 10th biannual CEDR Mediation Audit reported a 92% settlement rate on the day or within a week for mediated disputes. Ashurst's survey participants , whose practices include particularly high value and/or complex disputes, also reported healthy levels of settlement within the one-week timeframe: almost all of our mediators agreed that the chances of settlement within a week were at 50% or higher.

Question: What percentage of disputes settle during or within a week following the mediation?

Many of the mediators in our survey expressed the view that mediation is under-used, and applicable in more contexts than is commonly assumed. This is unsurprising in light of the encouraging data on the success of mediation. The overwhelming view is that “any dispute which is capable of a negotiated outcome is suitable for mediation.” Only a small number of narrow exceptions were identified, including cases where one party to a mediation (often a non-UK government entity) will not be able to get authority to settle. Cases involving fraud or bad faith were once thought to be poor candidates for mediated settlement. But many of our mediators said that such cases were capable of resolution through skilled mediation.

"You would be surprised the things that can settle even when people are sure they won't"
- Mia Forbes Pirie, Mediator, Ashurst 2025 mediator survey

From scepticism to acceptance: The case for compelled mediation

The concern with compelled mediation is, of course, that compulsion might breed resistance or superficial engagement in the mediation process. As a result, success rates for compelled mediation will be much lower. However, our survey provides some cause for optimism. We asked mediators whether they had seen differences in prospects of success for mediations which were contractually mandated or otherwise compulsory. In response, just over half of the mediators we surveyed reported that compulsion had no impact on prospects of success compared to voluntary mediation.

Question: Where mediation is contractually mandated / otherwise compulsory, have you seen a difference in prospects for success?

Drawing on his own practice, John Sturrock KC commented "once parties engage in mediation, if it’s handled well, they will nearly always want to work towards a resolution, whether mediation has been mandated or not". Even among those who considered compelled mediation to be less effective, there was a near-consensus that even reluctant parties can benefit significantly from the process—provided the mediation is well managed.

"If the mediator knows how to mediate then even reluctant participants in the process should understand its benefits"
- Stephen Ruttle KC , Mediator, Ashurst 2025 mediator survey

Making compulsory mediation work

The key to a successful mediation is not necessarily whether parties are compelled to attend, but how the process is facilitated. Survey responses highlighted four key factors that are likely to influence the success of a mediation (whether compelled or voluntary), particularly in the context of complex or high-value disputes.

1. Lawyer engagement

The mediators surveyed emphasised the important role of lawyers in the mediation process. Lawyers should properly explain the mediation process to their clients, manage expectations and ensure that their clients understand mediation as fundamentally a risk management tool requiring compromise.
However, several mediators took the opportunity to call out less-than-helpful behaviour on the part of lawyers. Two mediators called out unhelpful legal "grandstanding". Another cautioned against lawyers being "overly strident". One mediator politely suggested that lawyers should "avoid any hint of rudeness", while another more bluntly claimed that "too many lawyers want to showboat their fighting skills". While some degree of advocacy from lawyers during a mediation may be appropriate, parties should be conscious that too much adversarial lawyering from lawyers not experienced in mediation contexts can do more harm than good.

2. Access to up-to-date merits advice

A party's willingness or otherwise to offer or accept any settlement proposal will be heavily influenced by the legal advice they receive as to their prospects of successfully bringing or defending a claim in court. 85% of the mediators we surveyed considered that it was "extremely important" for a party to receive a merits advice (or updated merits advice) prior to a mediation. None considered it to be "not important".

Question: How important is it that a party receives merits advice (or updated merits advice) prior to mediation?

3. Mediator skills and experience

Unsurprisingly, mediators themselves will play the key role in setting the trajectory of the mediation and heavily influence its prospects of success. The mediator's unique skillset is likely to be all the more important in circumstances where mediation is compelled. But what makes for a good mediator?
Our survey suggests that the key attribute that parties should seek out is experience. The mediators surveyed appeared in agreement that "mediator skills are invariably learned by experience, and there is no substitute at all for such experience."

How would you rank the importance of the following factors when deciding upon a mediator?

4. Process design

Flexibility and adaptability in process design were repeatedly cited as crucial in the survey responses. The mediators were keen to emphasise that mediation can be a completely bespoke process to the individuals involved, the issues and the stage of the dispute.

"At its best, mediation is a highly sophisticated and nuanced process which is far more widely applicable than often thought, and far more creatively adaptable to highly complex situations than sometimes assumed. The worst enemy of this truth is the grossly simplistic model of mediation which too often features in the literature and publicity on the subject"
- Bill Marsh, Mediator, Ashurst 2025 mediator survey

It may be worth mediating with the goal of simply narrowing the scope of the issues in dispute. This reduces the time and cost burden associated with the dispute, even if outright settlement is not possible. This is particularly true in the context of high value and/or complex disputes.

"The lawyer has a crucial role to play in advising their client - it is not about regurgitating the points of claim or defence. Anyone can do that. It is about reality testing. Explaining what tomorrow looks like if the mediation fails."
- James Levy, Partner at Ashurst

As parties become more adept at managing compelled processes and parties gain experience of the benefits, we predict that initial scepticism will give way to widespread acceptance as parties experience the benefits first-hand. The flexibility and creativity possible in mediation, combined with judicial encouragement, promise to make ADR an ever more integral part of the English dispute resolution landscape.

Practical advice to parties preparing for a mediation

1. Get to know your case

Prepare as carefully as you would for a critical business meeting.
Get a merits advice (or an updated merits advice) and take time to understand what your strong points and your weak points are.
Assess whether you (and your team) are being realistic in your settlement expectations.

2. Consider the range of acceptable outcomes

Carry out a commercial analysis, not just a legal one.
Put yourself in the other side’s shoes and think about possible resolutions from their perspective. Consider monetary solutions, non-monetary solutions, and combinations of the two.
Know your bottom line but be prepared to be flexible if new information arises.

3. Make the most of the mediation process

Meet with the mediator and the other party(ies) to design an effective process well before the "actual" mediation.
Always bring the ultimate decision makers, or at the very least have them available on the phone.
Prepare to be conciliatory and accept that there may be some fault on your side.
Make sure anything you plan to disclose to the other side has been disclosed with enough time for them to properly analyse the disclosures. There is very little benefit in surprising people with information at a mediation.
Be prepared to put your cards on the table and plan for frank dialogue.

For an overview of the topic of commercial mediation, please consult our Commercial Mediation QuickGuide.

The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.