2024 – A Special Year for Cases on Mediation

1: Why a Special Year?

Why should 2024 be so special in relation to my annual review of court decisions about mediation on BAILII? The answer is that when mediation came up for judicial consideration during the first nine months of the year, the position was dominated by the Court of Appeal decision in Churchill v Merthyr Tydfil CBC[1]. This had overturned the generally accepted (if much criticised) view expressed in Halsey v Milton Keynes NHS Trust[2] in 2004 that judges could not order mediation without offending party rights to a public trial under ECHR Article 6. The remaining three months of 2024 have been dominated by the amendments made to the Civil Procedure Rules consequential upon Churchill. The Civil Procedure Rules Committee had conducted a swift consultation on these proposed changes during the spring of 2024 and published the result in July, with the amended rules - barely changed after the consultation - to be brought into effect on 1 October 2024.

The power to order what the CPR still calls “alternative dispute resolution (ADR)” was inserted unequivocally into CPR 3, the main case management rule, plus CPR 28 and 29 dealing with fast track and multitrack directions. Furthermore, CPR 44.5 now spells out what was originally decided by the Court of Appeal in Dunnett v Railtrack as long ago as 2002 - and was not overruled by Halsey – that unreasonable litigation conduct which might be subject to sanction regardless of a winning or losing includes:

(e) whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to participate in alternative dispute resolution proposed by another party.

But the course of civil justice has been most dramatically altered by the amendment to CPR 1, the overriding objective, defined since 2013 as being “to deal with cases justly and at proportionate cost”. CPR 1.1(2) now specifically says that dealing with cases with this aim includes:

(f) using and promoting alternative dispute resolution;

Although compliance with these rules - as with all the CPR - is made the responsibility of all lawyers involved in litigation, one cannot help but feel that this amendment is directed most of all at some at least of the judiciary. There have been a number of instances over the years where some (certainly not all) judges have clearly been unenthusiastic about mediation and have thus been reluctant to sanction refusal to use the process. They have been ready to accept arguments that mediation would not have worked because the gap between the parties was too wide, or to forgive parties for refusing because they believed they had a strong case,. Some have regarded refusal to mediate as being “just one of several factors” for them to take into account. Now that judges are under a duty to deliver the overriding objective by “using and promoting” mediation and other processes, such reluctance will be harder to justify.

In tracing developments during 2024, it is particularly striking to notice what difference in judicial attitudes has been demonstrated before and after the CPR were amended on 1 October 2024. Certainly in decisions made before that date, the significance of Churchill is noted and some sanctions for failure are imposed, but no orders to mediate were actually made. That reluctance has begun to disappear in decisions since October 2024.

2: Sanctions cases – January to October 2024

In Northamber v Genee World and others [C v DD and D2][3], an appeal in a case largely conducted before Churchill had reached the Court of Appeal, C’s appeal was allowed by finding that D2 had actionably induced a breach of contract. C also appealed that the trial judge had only allowed them 70% of their costs, having refused to make any deduction for D’s refusal to mediate. DD had entirely ignored C’s invitation to mediate and failed to file witness statements to justify their refusal within the Fontaine direction timetable, although C did not chase DD over this default. Arnold LJ delivered the unanimous appeal judgment on this, finding that:

… the judge fell into error. [D2] and [DD] were silent in the face of an offer to mediate. That was in itself unreasonable. To compound matters, they breached an order of the court requiring them to explain their failure to agree to mediation. If breaches of such orders are ignored by courts when deciding costs, parties will have no incentive to comply with them. That would undermine the purpose of making them, which is robustly to encourage parties to mediate.

Three significant matters arise from this decision. Firstly, the Court of Appeal said that it was not necessary for C to do to any more to follow up their proposal to mediate, and they did not allocate blame to C for not doing so.

Secondly, this is the first decision in which the imposition of a sanction is related specifically to failure to file the witness statements required by former Senior Master Fontaine’s direction which has been in general use for some years across the Divisions of the High Court and in the County Court. This, as suggested by Briggs LJ in PGF v OFMS[4], deliberately required contemporaneous recording of any excuses for not mediating to be lodged, and not ones which might be capable of finessing by subsequent events close to or during trial.

Thirdly, the Northamber Court of Appeal clearly separated the two issues of whether there was indeed an unreasonable refusal to mediate worthy of sanction, and what that sanction might be, challenging the tendency among some judges to say that whether a sanctionable failure to mediate at all is just “one of several factors” to take into account[5]. This is based on a questionable interpretation of PGF by Patten LJ in Gore v Naheed[6], although it has been followed several times since. What Briggs LJ said in PGF was that failure to respond to a genuine offer to mediate is “as a general rule unreasonable conduct which merited a sanction” which would only in principle be excusable “in rare cases where ADR is so obviously inappropriate that to characterise silence as unreasonable would be pure formalism”. Jackson LJ added strength to this view in Thakkar v Patel[7] when he said:

The message which this court sent out in PGF II was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction. [my emphasis in both extracts]

What that sanction should be is of course a matter for discretion and depends on a number of factors which will always impinge upon what costs decision to make in a jurisdiction where issue-based costs orders are possible and comparisons between the conduct of winners and losers can swing the apportionment of costs in directions that were inconceivable before the CPR reforms came into effect in 1999. In Northamber, the Court of Appeal merely increased the proportion of costs recoverable by C from the defendants from 70% to 75%. But this still represented a sanction for the failure in principle to respond to the Fontaine direction as required. Another 5% of the budgeted costs still represented around £37,500, and possibly more after a nine-day trial and two day appeal!

In Invenia Technical Computing v Hudson[8], C sought an injunction to restrain B from proceeding with a winding-up petition which (they said) was an abuse of process, as it was based on demands for disputed debts. D made a number of applications seeking more time and relief from sanctions and seeking to strike out the application. The strike-out attempt was lost at an earlier hearing, the judge finding it to be “totally without merit”. At the substantive hearing in December 2023 for an injunction (a month after Churchill) which dealt with D’s other applications too, ICC Judge Barber granted an injunction to C and found firmly against D on almost every application and cross-application (though not on every point). At a costs hearing in February 2024, the judge awarded C all their costs, some on a standard basis and some on an indemnity basis, declining to sanction C for refusing to mediate. Her judgment reads quite like old times in the way that Halsey is applied, with reference to the burden being on the losing party D to change what a successful party C might expect by way of costs. Besides Halsey and Churchill, she was referred to such old friends as Dunnett v Railtrack[9], Hurst v Leeming[10] and Royal Bank of Canada v MoD[11], saying that she took those cases into account, though without giving any detailed analysis of how she viewed these decisions.

The judge found that D’s proposal to mediate had been backed with various threats of action if not accepted, and that C’s response that they would agree to mediate once various allegedly wrongful steps taken by D (in respect of the which the judge later ruled in C’s favour) had been withdrawn. D argued that this amounted to a repudiation of his offer to mediate and sought to escape full liability for the costs, based on this refusal. The judge found that C reasonably believed they had a “strong” case (she did not use “watertight” as the test), and also that mediation would have added an unnecessary layer of expense and possibly hazarded a hearing date. She was quick to criticise some of D’s unwarranted actions, threats and allegations of fraud.

Invenia reminds us that Halsey is still unreversed on the question of costs sanctions for refusing an inter-party offer to mediate, though its strength as an authority on reasonable belief in a “watertight” case as a reason for not mediating has been much diluted by other decisions since 2004[12], none of which were mentioned in the judgment as having been cited. Halsey also remains unreversed on the burden of proof, despite criticism of this[13]. Whether Invenia would have been decided in the same way if the new CPR rules had been in force cannot be known but must be open to doubt. If D had had his proposal to mediate turned down in the same way by C and had applied for an ‘ADR order’ would the court have granted his application? Could C have resisted it on the same conditional basis as they attempted? Or would a court simply have told the parties “get on with mediation”? If D had proposed mediation but not followed up C’s refusal by making an application for an ‘ADR order’, the court would almost certainly questioned whether his was a bona fide suggestion of mediation and lent no credence to it as a reason for considering a costs sanction for C’s refusal.

In Heathcote v Asertis[14], the trial judge found partly in favour and partly against each party. The judge decided that C had in effect been the overall winner. His order that D paid 75% of C’s costs was upheld, based (among other things) on the fact that D had refused to mediate and made no Part 36 offer.

In Payone gmbh v Logo[15], D had removed quantities of confidential documents from C when employed by them, asserting that he was a whistle-blower. He acted in person but lost at trial and C was granted an injunction to restrain further dissemination of those documents. D refused to mediate and this was a factor in ordering indemnity costs against him, even though he was an LiP.

Similarly in Duke of Sussex (C1) and Sanderson (C2) v Mirror Group Newspapers[16], a high profile privacy claim with the Duke of Susses as the headline claimant and with several other claimants. At a costs hearing following the unsuccessful claim of C2, who lost on limitation, but even if successful on that would have been awarded lower damages than a Part 36 offer made by D, Fancourt J ordered C2 to pay D’s costs on the indemnity basis because of her exaggerated claims and her refusal to contemplate mediation. He did so despite the significant criticisms he had made about D’s conduct.

3: Ordering and staying for mediation – January to October 2024

Churchill firmly identified that judges have the power to make ‘ADR orders’ if they think fit, and also recognised the existing inherent power of the courts to stay for ADR, used in a series of cases before Churchill was decided.[17] Did judges started making ‘ADR orders’ or ordering a stay before the CPR were amended in October 2024? The answer is ‘not really’.

In Heyes v Holt[18], a claim in proprietary estoppel, D sought to strike out C’s claim. The judge held that although it was weak it was arguable. He went on to observe:

This is a case which cries out for mediation by the parties. I am aware that mediation has already been attempted between the parties (in November 2022), and on that occasion it failed. I commend them nevertheless for trying. But that was before the claim had even been issued. Now that the parties have full pleadings and disclosure, as well as (for what it may be worth) this judgment, the parties should try again. I will order a stay for that purpose. In entering such a mediation, the claimants would now be aware that, on the materials that I have so far seen and heard, their case is weak, and the costs of the whole trial would, on the claimants' own evidence, ruin them if they lost. I can also see considerable scope for cross-examination of the claimants on their evidence at trial. In a case where summary judgment has been sought, but not obtained, there is always a (real) risk at trial for the party or parties that survived the application. On her side, the defendant would be aware of the difference between, on the one hand, simply looking at documents presented to the court on their own, and, on the other, hearing and seeing witnesses and cross-examination at trial. She would also take full account of litigation risk. In litigation, whatever the lawyers say, nothing is certain.

He then ordered a stay for a second mediation, and gave other directions.

In Francis v Pearson and Burston, [19] a libel action between fellow occupiers of a residential estate which had been running for many years, DD unsuccessfully sought to have it struck out for want of prosecution. The judge noted at the end of his judgment:

87. I can see that the parties have already attempted mediation.

88. Experience shows that it is often in entrenched cases such as this that ADR can make a real difference, often requiring honest conversations with parties as to the merits of their respective cases, and the potential downsides, as well as looking at pragmatic ways forward.

89. As part of the process, mediators might also see the parties together, without their lawyers, to try and explore ways forward.

90. In a case such as this, it might also be possible for agreement to be reached on ancillary matters that help the parties move forward, but which the court may not have the power to order at trial.

91. The parties need to reflect on the reasons why the cases did not settle at mediation, and the costs of continuing this litigation – not just in terms of money, but the personal costs to each party for example from the time and energy spent fighting, the stress and worry the proceedings might cause, particularly in respect of outcomes, and the impact that it is going to have on the wider community in which they live.

92. I would strongly recommend that the parties re-consider some form of alternative dispute resolution process – which might include further mediation, or some other way of facilitating agreement - before matters in this case move forward and further costs are incurred.

No formal stay was ordered, however.

In Conway v Conway[20], the County Court judge issued a dire warning to D about the seriousness with which refusal to mediate before the end of the litigation would be viewed. He did not make an ‘ADR order’ or a stay.

Mediation was urged by the judge dealing with possession proceedings over sit-in protests in Birmingham University v XX[21] and in Proctor v Proctor[22], a family partnership dispute, the court decided the basis on which a retired partner should be paid, which required resolution over a further valuation of the assets. Peter Jackson LJ said in a postscript:

The older generations may have had an aversion to paying tax, but the younger generation's litigation habit is at least as great a threat to the family's hopes. The remaining disputes cry out for mediation.

In Sherman v Reader Offers[23], the Court of Appeal remitted a travel claim back to the County Court for decision on a basis narrowed by the scope of what the trial judge had already found as facts and the extent of liability decided by the appeal. They firmly recommended mediation in view of proportionality in relation to the likely modest damages and the 11 days already spent in litigating such a modest claim.

Both of these cases was remitted for further judicial decision, so there was probably no scope for the Court of Appeal to make an ‘ADR order’. Its own mediation scheme really only deals with cases between the lower and upper courts, though there is perhaps no reason why this should not be changed, as on a number of occasions over many years, the Court of Appeal has had to remit cases to lower courts with a firm recommendation for mediation.

In Klaturov v Revetas[24] a complex clam for alleged unpaid compensation and/or a share of profits by former employees of a private equity company, the judge dismissed the compensation claim but ordered an account as to the value of the profit shares. Despite this hearing being well after Churchill, he closed his judgment by saying:

I will also invite the parties to consider whether it would be appropriate for there to be a stay for NDR. It seems to me that it would. It may well be the case that a one-day mediation (possibly with the assistance a forensic accountant) might be a more cost-effective way to resolve the profit share claim. If the parties do not agree, then any directions for an account will obviously need to take account of and proceed in parallel with the directions already given in respect of Claimants' Buy Out claim.

He gave no sign of knowing that he could order them to do this!

4: Ordering mediation after 1 October 2024

There are so far only two to consider, but both are very striking.

Elphicke v Times Media[25] is the last judgment given by Master Victoria McCloud before her retirement from the Bench, and is dated 14 days after the CPR rules were changed. C had sued DD in libel but had discontinued his claim. Under CPR 38, DD were entitled to expect C to pay their costs of the action, unless C could show good reason why not. C alleged and it was largely accepted that DD had wrongly retained and used witness statements after the discontinuance. He argued that he was entitled to use DD’s post-discontinuance misconduct as the basis for shifting the presumption over his liability for costs. He also relied upon DD’s refusal to mediate and to observe the provisions of the Media and Communications PAP. Master McCloud held that pre-issue alleged misconduct could not justify undoing the normal costs consequences of CPR 38, but that misuse of witness statements after discontinuance could. She therefore reduced C’s liability for DD’s costs by 20% to 80%. She also took particular note of Churchill and the recently introduced changes to the CPR, and ordered “ADR” of the assessment of DD’s costs, as follows:

134. Here there remains the prospect of long, expensive Detailed Assessment proceedings with counsel and costs lawyers occupying perhaps several days, at a cost comparable with that of many trials. In all cases where the claim is at an end, such as here, but significant costs are incurred and must be determined, in my judgment it would be remiss of a judge not to make use of the principles in cases such as Churchill and direct that, before a fresh set of proceedings is in effect commenced so as to lead to detailed assessment there must be proper dispute resolution. I fully expect such an order to (need to) become the norm when a judge directs detailed assessment unless costs are agreed.

135. So often in the years when I sat as a Deputy Costs Judge of the Supreme (later Senior) Court I saw that bills of costs were listed for lengthy hearings yet once Costs Lawyers (and sometimes counsel) attended the hearing and discussed matters, or once I had ruled on points of principle in the bill very shortly, the matter was resolved pragmatically.

136. It is my judgment essential that courts do what they can in the present congested court system to bring forward that settlement process so that assessments of costs are not needlessly listed whether in our County Courts (busy as they are) or in the Senior Courts Office, only to 'go short' when – at last – some pragmatic discussion takes place between lawyers who know both the 'ropes' and the reality of how assessment proceeds. I do not doubt that consequences can and will result generally if parties in such cases come before the Taxing Master (Costs Judge) and have failed to do the court the courtesy of proper engagement in pre-assessment ADR.

137. I shall include a provision of my own motion that the parties must engage in alternative dispute resolution as to the costs claimed by the Defendant. Good reason will need to be shown if the form of that dispute resolution is at any less engaged a level than mediation via Costs Lawyers given that the Bill here more than justifies Costs Lawyer input. The time for commencing detailed assessment is to be extended until conclusion of any such mediation, or the point at which either party indicates it is not prepared to proceed and wishes to go to assessment. Any party which decides not to engage in ADR, as above or to 'call it off' must be in a position to justify that non-engagement to the Costs Judge and be alert to the provisions of CPR 44.11 and indeed the developing common law since Churchill.

In DKH Retail v City Football Group Ltd[26], DKH (CC), owners of the trademark “Superdry”, a clothing brand, alleged a trademark infringement by Manchester City FC (DD) in relation to club shirts bearing not only the name of their sponsor Asahi but also the words “Super” and “Dry” (though referring to Asahi’s 0% lager brand). The claim was contested and was destined to be heard in the Shorter Trial Scheme List in the Business and Property Court. However a pre-trial review was convened. By that time (according to counsel for the defendants) the parties had already spent “hundreds of thousands of pounds” on the action. The PTR came before Miles J in November 2024, a year after Churchill and a month after the amended CPR came into force.

CC made two applications: firstly, for disclosure of the sponsorship contract between DD and Asahi, and secondly for an order for compulsory mediation. It is relative rare to read a judgment delivered at a pre-trial review, where the likely trial judge gives final trial management directions instead of a Master. Both applications were opposed by DD. Miles J dealt first with the disclosure point, finding that the sponsorship agreement should be disclosed, as it had been on a list attached to the witness statement served on behalf of the club. On the application for an order to mediate, Miles J rehearsed the changes wrought both by Churchill and the consequent amendments to the CPR which specifically authorised judges to order mediation. CC had said that the issues were relatively narrow and that there were possible ways of resolving the dispute which a trial could not deliver and argued that a “short sharp mediation” was worth trying. Even though substantial costs had already been spent, very considerable further sums were about to be spent, even on a brisk trial. Counsel for DD argued that it was very late in the day for mediation and that there needed to be a reasonable prospect of success, which he suggested did not exist.

Miles J summed the situation up with admirable clarity and appreciation of what can be achieved through mediation. It is worth quoting his decision on this issue word for word:

38.…in many cases the parties' positions in the litigation are diametrically opposed and it may easily be said that each party requires a judicial determination. But nonetheless the parties come through ADR to recognise the desirability of settling for less than their strict legal rights and compromising their positions. Experience shows that mediation is capable of cracking even the hardest nuts. The process sometimes succeeds in cases where the parties appear at first to have intractable differences. Here, as the claimants said, everything would be up for grabs at a mediation, including the form of representation of any branding on the relevant kit, timing and money. The claimants are also right to say that the dispute is self-contained and that a mediation would be able to focus on possible solutions rather than raking over historical grievances.

39. I see some force in the defendant's submission that it is late in the day to be seeking an order, but it may also be said that there is some advantage in the parties' positions having been crystallised through pleadings and the service of witness statements. It is indeed sometimes an objection to mediation that it is premature, proposed at a stage when the parties' positions are unknown. That cannot be said here.

40. There is also some force in the submission of counsel for the defendant that these are commercial parties with experienced solicitors and that if there was realistically to be a settlement, one would have expected it already to have been reached. But that argument does not do full justice to experience, which shows that bringing the parties together through mediation can overcome an entrenched reluctance of parties to negotiate, even where sincere. The purpose of mediation is to remove roadblocks to settlement. I am unable to accept the submissions of the defendant that a mediation here has low prospects of success and that adjudication by a court is necessarily required. There may be solutions other than yes or no.

41. A mediation of this case will be short and sharp, and the documents needed for it would be brief. The defendant did not suggest that mediation would significantly disrupt the parties' preparations for trial.

42. Counsel for the defendant said that his instructions were that they had very limited availability in December. However, on the available material it seems it would be possible for the parties to find a workable date.

43. I take account of all of the considerations identified by the parties. Overall I am satisfied that this is a case where I should order the parties to mediate with a view to seeking, if possible, to resolve the dispute between them and that it should take place during December 2024. The parties should report its outcome to the court as soon as possible after the mediation is complete.

The icing on the cake appears at paragraph 44 of the judgment added later which reads

44. Postscript: on 13 January 2025 the parties notified the court that they had settled their dispute.

Mediators would say that this is the perfect illustration of how mediation can give disputing parties a real chance to avoid the expense and wear and tear of litigation, even when all else has failed. On the face of it the parties in DKH v City were at irreconcilable odds. Huge sums had been spent on costs, but further huge sums were about to be spent, even if the trial was to be relatively brief. A “short and sharp” mediation helped the parties to resolve the claim. The fact that the judge made the order for mediation minimised the potential loss of face that ether party might have felt over being the “first to blink” in suggesting settlement discussions. Settlement of that case takes some of the strain off the rest of the civil justice system.

Furthermore, if mediation had not been ordered, the strong chances are that the case would have settled at the court door, thus wasting court and judicial time and plenty of client money. One of the forgotten benefits of mediation is that it has reduced the number of court-door settlements that used to blight courtrooms. Any case that settled at the court door was almost without exception capable of settlement through mediation (or any other settlement effort that parties might winch themselves up to attempt) six months before trial, thus saving party and court time and expense.

5 Where to in 2025?

What we can perhaps all hope to see in relation to orders to mediate and hearings to discuss costs sanctions for unreasonable refusal to mediate is a reduction in the need for the latter type of hearing, except where dealing with pre-2024 litigation and with allegations of pre-issue unreasonable refusals. In any proceedings which are current after 1 October 2024, a party wishing to mediate can (as happened in DKH) apply to the court for an order, even as late as a pre-trial review. Unless the judge at any CMC or PTR finds cogent reasons for not ordering it, mediation will presumably take place. Experience over the years suggests that many cases referred to mediation will settle, despite advance protestations that it is unlikely to succeed. If they do not settle, then the courts are there to adjudicate. There should only be rare cases in which a party whose suggestion of mediation is rebuffed will simply pocket that refusal and plan to rely upon it at the end of the trial to reduce costs liability in the event of losing or to get indemnity costs in the event of winning. The risk in doing that is that the trial judge might well criticise such a ploy by challenging that party’s failure to seek an order for mediation from the court before trial.

Costs consequences for unreasonably refusing to mediate are only likely to arise in future when offer and refusal were made in the pre-action period, during which no judge can be approached to make an order. That period is already regulated to an extent by the Pre-action Protocols. Hitherto observance of these has not been strongly policed. Indeed the claimant’s attempt in Elphicke to persuade Master McCloud to sanction pre-action misconduct was a rare example of trying (albeit unsuccessfully) to do so. The Pre-action Protocols are the subject of detailed recommendations from the Civil Justice Council for reform to make observance, and in particular their dispute resolution requirements, mandatory. If and when implemented these will close the circle as to the constant place of mediation in civil justice.

6: A postscript about mediation, neutral evaluation and ADR

There is still no consensus about what collective term to use for such dispute resolution processes as mediation, neutral evaluation (whether “early” or “judicial”). The CPR use the term “alternative dispute resolution” despite the inappropriateness of calling a mainstream set of processes “alternative” when their use far outweighs court trial, and Vos MR himself has expressed firm dislike of the term ADR and particularly the word “alternative”. The glossary to the CPR describes (not defines) ADR as a “collective description of methods of resolving disputes otherwise than through the normal trial process,” which is so wide as to encompass “mere” bilateral negotiation, joint settlement meetings (JSMs), court-door settlements, Part 36 offers, semi-adjudicative processes like ombuds and adjudication, and even adjudicative processes like expert determination, arbitration, as well as mediation and neutral evaluation. Vos MR uses “non-court based dispute resolution” in Churchill. Family lawyers are using non-court (NCDR) and financial (FDR) dispute resolution.

There is a clear distinction between adjudicative and non-adjudicative processes. In the former, parties submit to the ruling of a third party decision-maker, and in the latter parties make their own decision in the light of what emerges from the chosen process. Adjudicative processes include court trial, arbitration and expert determination, and to some extent adjudication in building disputes and ombuds processes. Non-adjudicative processes include mediation and neutral evaluation plus complaints procedures, ordinary bilateral negotiation and some ombuds processes. Another distinction is beginning to emerge[27] between dispute resolution processes which are managed by a neutral and those which are not. So mediation and neutral evaluation have third party management, whereas complaints and bilateral negotiation do not. On a broad brush basis the only dispute resolution processes which are both non-adjudicative and also third-party-managed are mediation and neutral evaluation. It is no coincidence therefore that court decisions about the use and place of “ADR” have focused on these two. They have of course also had to rule on arbitration and adjudication disputes and indeed on the workings of Part 36 offers, but none of these qualify in both respects as non-adjudicative and third-party-managed.

But court focus on mediation and neutral evaluation has been startlingly imbalanced. Mediation has repeatedly been referred to judges over the 25 years since the CPR were introduced in 1999. Annual BAILII searches of mediation reveals something like 100 annual references to mediation for one reason or another, and these include maybe 10 or 12 which contribute substantively to law and practice. The 2024 cases have been summarised above. By contrast, there were no court decisions considering the place of neutral evaluation in 2024 or indeed 2023. Since Seals v Williams in 2015 led on to Lomax v Lomax in 2020 and the consequent amendment to CPR 3, which established that courts could order judicial neutral evaluation even if opposed by one party, there have been only two or three cases considering use of the process, and all have been about judicial and not private evaluation[28]. No decision has ever published in which a party has sought a costs sanction because another party unreasonably refused to refer a claim to private ENE. Contrast the frequency of such decisions in relation to refusal to mediate.

The truth is that private ENE has either rarely been taken up, or it has remained below the judicial radar. Even if judicial ENE in the form of FDR has proliferated in the Family Division, it remains rare in the non-family civil courts. Mediation is far and away the most used non-adjudicative third-party-managed dispute resolution process, and the legal profession, including the judiciary, may as well operate as if this is so. Now that judges can order use of “non-court dispute resolution processes”, they will not (or should not) simply use a broad categorisation like that, but actually specify the process, like Miles J in DKH, who clearly specified mediation. True, Master McCloud in Elphicke ordered “ADR”, but she said that the court might well disapprove “if the form of that dispute resolution is at any less engaged a level than mediation”. Surely the time has come for judges who are asked to order parties to utilise an extra-judicial dispute resolution process to specify what they want to see used. In the large majority of cases, it will be mediation. In some (for instance in the TCC) it will be judicial evaluation. Judges have never ordered parties to use private evaluation, nor surrendered their jurisdiction to decide cases to any adjudicative or semi-adjudicative process like arbitration, adjudication or ombuds resolution unless the parties themselves have formally contracted to use such processes to the exclusion of the court’s jurisdiction.

If courts take this approach in relation to issued cases in which the court has acquire full jurisdiction the problems over what is “ADR” should disappear. Parties who want another party to engage in a certain settlement process can now apply to the court and expect an order. If parties arrive at a case management conference having tacitly ignored or colluded over not using mediation, the court has the power to correct their omission and order its use. Distinctions between types of “ADR” should only arise in relation to inter-party offers over “ADR” before cases are issued, when pre-action protocol non-compliance may be alleged at directions hearings after issue. Even then, with its newly clarified powers, the practical answer will be to order a specified process then, coupled perhaps with a costs sanction for pre-action misconduct if made out. In this way, Churchill and the reforms associated with it should lead to the welcome demise both of post-trial costs disputes over refusal to mediate and also any continuing need to use the acronym “ADR” at all.

Notes

1 [2023] EWCA Civ 1416

2 [2004] EWCA Civ 576

3 [2024] EWCA Civ 428

4 [2013] EWCA Civ 1288

5 Suggested in Gore v Naheed [2017] EWCA Civ 369. The distaste for mediation felt by HHJ Harris QC at trial and apparently shared by Patten LJ on appeal may not be able to survive the October 2024 amendment to CPR 1.

6 [2017] EWCA Civ 369

7 [2017] EWCA Civ 117

8 [2024] EWHC 1302 (Ch)

9 [2002] EWCA Civ 303

10 [2002] EWHC 1051 (Ch)

11 [2003] EWHC 1479 (Ch)

12 For instance Northrop Grumman v BAE Systems [2014] EWHC 3148 (TCC); Garrett-Critchley v Ronnan [2014] EWHC 1774 (Ch); DSN v Blackpool FC [2020] EWHC 595 (QB) is the trial judgment; and [2020] EWHC 670 (QB) the costs judgment; and TMO Renewables v McBraida [[2022] EWCA Civ 1409

13 For instance in speeches by Sir Gavin Lightman and Lord Phillips of Worth Matravers

14 [2024] EWCA Civ 242

15 [2024] EWHC 981 (KB)

16 [2024] EWHC 274 (Ch)

17 See Andrews v Barclays Bank [2012] EWHC B13 (Merc); Hussein v Chowdury [2020] EWHC 790 (Ch); Abdul-Kadr v LB Kensington [2022] EWHC 2006 (KB) and Hamon v UCL [2023] EEWHC 1812 (KB)

18 [2024] EWHC 779 (Ch)

19 [2024] EWHC 605 (KB)

20 [2024] EW Misc 19 (CC)

21 [2024] 1529 (KB)

22 [2024] EWCA Civ 324

23 [2024] EWCA Civ 412

24 [2024] EWHC 495 (Comm)

25 [2024] EWHC 2595 (KB)

26 [2024] EWHC 3231 (Ch)

27 See the Civil Justice Council Final Report on the Pre-action Protocols: first phase published August 2023 and second phase in November 2024

28 See Telecom Centre v Thomas Sanderson Ltd [2020] EWHC 368 (QB); The Sky’s the Limit v Mirza [2020] EWHC (TCC); and Holden v Holden [2024]