Litigation has long been the default forum for dispute resolution, yet it can be expensive, slow and adversarial. Increasingly parties, with support from the judiciary, are exploring alternative routes to resolve disputes that prioritise speed, confidentiality and control. Alternative Dispute Resolution (ADR) encompasses a range of options, including negotiation, mediation, arbitration, adjudication, expert determination and early neutral evaluation. Each offers distinct advantages depending on the nature of the dispute, commercial context and the parties appetite for risk. For many clients, integrating ADR can reduce the scope of issues that reach trial, improve the prospects of settlement and preserve business relationships that litigation might otherwise destroy.
The Evolving Status of Mediation
Mediation remains the most common form of ADR, offering a confidential, flexible and cost efficient forum where a neutral mediator facilitates dialogue and settlement. The legal position on ADR has evolved. In Halsey v Milton Keynes General NHS Trust (2004) EWCA Civ 576, the Court of Appeal held that the court had no jurisdiction to force the parties to mediate, relying on Article 6 of the European Convention on Human Rights. The tide turned with Churchill v Merthyr Tydfil County Borough Council (2023) EWCA Civ 1416 where the Court of Appeal confirmed that the court can lawfully stay proceedings and require parties to engage in ADR, provided this does not impair the essence of a claimant’s right to a judicial hearing and is proportionate to the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
Since October 2024, the Civil Procedure Rules CPR 3.1(2)(o) have made provision for Judges to order or encourage ADR. Compliance can be considered in costs awards. In DKH Retail Limited v City Football Group Limited (2024) EWHC 3231 (Ch) the High Court ordered mediation over a party’s objection, illustrating that judicial direction to mediate is no longer exceptional. In Ivey and Ors v Lythgoe and Another EWCH 2325 (Ch) (12 September 2025) the court consolidated proceedings and ordered a newly joined party to participate in a mediation which was already arranged.
Options Beyond Mediation
While mediation continues to dominate current discussion, several other ADR routes deserve attention. The main ones are:-
- Arbitration – this is suitable for cross-border or technical disputes where privacy and enforceability matter. It provides for a binding decision by a neutral party.
- Adjudication – widely used in the construction and infrastructure sectors it offers a rapid interim decision to maintain cash flow and project momentum.
- Expert Determination – allows parties to appoint a specialist to decide a discrete technical or valuation issue. It is cost effective and non-adversarial.
- Early neutral evaluation – involves a senior lawyer or retired Judge offering a non- binding assessment of merits, often breaking the deadlock where parties’ expectations diverge.
The Modern Dispute Landscape
ADR is now integral to civil justice. Mediation may lead the field, but arbitration, adjudication, expert determination and early neutral evaluation continue to play vital roles, often offering sector- specific or technical solutions that courts cannot replicate. Parties who disregard ADR risk both cost sanctions and strategic disadvantage. A forward thinking approach is to treat ADR not as an alternative to litigation but as an essential stage in dispute resolution planning – one that increasingly shapes outcomes before a trial date is set.
