Mandatory Mediation: Understanding the New Civil Procedure Rules in Civil Disputes

As of the 1st of October 2024, the Civil Procedure Rules (CPR) have been updated to empower courts to pause civil legal proceedings, allowing parties to explore resolution options through mediation or other forms of alternative dispute resolution (ADR). This change stems from the case of Churchill v Merthyr Tydfil County Borough Council, which affirmed that courts can stay a claim or require parties to engage in a non-court-based resolution process as long as it does not infringe on a party's right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).

In this article, Ruben Chahal, Assistant within the Litigation and Dispute Resolution team at Warner Goodman LLP, looks at the new CPR rules and their potential effects on those involved in civil disputes.

Explanation of the Rules

As of the 1st of October 2024, the CPR rules have been amended to include the following:

• CPR 1.1 - The overriding objective of dealing with cases justly and at proportionate cost, so far as practicable, will now include "promoting or using" ADR.
• CPR 1.4(2) and 3.1(2) - The courts' general case management duties and powers have been clarified to not only encourage but also require parties to engage in ADR when appropriate.
• Part 44 - When the court is exercising its general costs discretion, its consideration of the parties' conduct may now include "whether a party failed to comply with an order for ADR, or unreasonably failed to engage in ADR."

The Impact of These Changes

Many hope the amended CPR rules will positively impact the resolution of civil disputes. Mediation can often be an effective way of resolving disputes, as both parties can have their input and agree on settlements that a court may not be able to mandate. It is also hoped that empowering the courts to stay proceedings and promote ADR will result in more cases settling quicker within the litigation process, easing pressure on the courts' lists and resources.

However, it remains unclear what the repercussions could be if a party refuses to participate in mediation and what sanctions the court may impose as a result. Potential outcomes could range from cost-adverse orders to more severe consequences, such as penal orders. However, this is something that will become clearer over time.

Ruben Chahal, from Warner Goodman's Litigation team, commented, "With many years of experience helping clients resolve disputes, we've seen that ADR methods like mediation often lead to more successful, cost-effective, and efficient resolutions compared to court proceedings."

When the Courts Can Use These Powers

Since the implementation of the revised CPR rules, it remains uncertain when the courts will choose to exercise this power. In the case of Churchill v Merthyr Tydfil County Borough Council, the Court of Appeal emphasised that judges should not be restricted by a list of factors, indicating that the decision to utilise this power will be made on a case-by-case basis as and when the judge considers it appropriate.

This amendment to the rules is expected to be used in civil litigation only but may extend to other areas of litigation in the future.

Summary

Because these amendments have only recently been introduced, it is too early to assess their full impact. However, we expect to see an increase in the number of mediations and for it to become routine practice for judges to question whether mediation should be utilised at the initial directions hearing for every civil case moving forward.

For further information about the new Civil Procedure Rules or help resolving an ongoing dispute, please contact our Litigation & Dispute Resolution team on 023 8063 9311 or email enquiries@warnergoodman.co.uk.