Alternative Dispute Resolution (ADR) has long been encouraged by the courts.
Until recently, though, a party could refuse to mediate and still rely on their “day in court.” That changed with the Court of Appeal’s landmark ruling in Churchill v Merthyr Tydfil County Borough Council (2023), which confirmed that judges can compel parties to engage in ADR.
For anyone involved in property, commercial, or civil disputes, this ruling is a game-changer. It reshapes the litigation landscape, affecting strategy, costs, and outcomes.
Our dispute resolution team can advise you on ADR strategy, costs, and outcomes. Call Lewis Nedas on 020 7387 2032 or complete our online enquiry form today.
Why the case matters
The dispute in Churchill was about Japanese knotweed spreading from council land into a homeowner’s garden. The council argued that Mr Churchill should have used its internal complaints procedure (a form of ADR) before going to court.
Historically, the leading authority (Halsey v Milton Keynes NHS Trust [2004]) suggested parties could not be forced into ADR. But the Court of Appeal in Churchill took a different approach:
- Courts do have power to order parties into ADR, so long as it doesn’t block access to a fair trial.
- Judges can look at the proportionality of refusing ADR when deciding costs.
- The ruling reflects a broader policy shift: litigation should be the last resort, not the first.
What counts as ADR?
ADR isn’t just mediation. Courts can order or encourage:
- Mediation – a neutral mediator helps parties negotiate a settlement.
- Arbitration – a binding decision from an independent arbitrator.
- Early Neutral Evaluation – a non-binding assessment by a judge or senior lawyer.
- Internal or industry schemes – e.g. complaints procedures, ombudsman services.
Practical impact on disputes
- Costs risks: A party who refuses ADR without good reason can face serious costs penalties – even if they “win” the case.
- Timing: Expect judges to press harder for ADR at early stages, including allocation and case management hearings.
- Flexibility: ADR can resolve issues courts can’t – for example, practical arrangements between neighbours or landlords and tenants.
- Strategy: Litigants need to build ADR into their planning from the outset, not treat it as an afterthought.
What this means for property and commercial disputes
At Lewis Nedas, we are already seeing Churchill applied in:
- Neighbour and boundary disputes – where litigation costs can easily exceed the value of the land in question.
- Landlord-tenant conflicts – service charges, repairs, or arrears often benefit from mediated solutions.
- Commercial disputes – ADR is quicker, confidential, and helps preserve business relationships.
How Lewis Nedas can help
Our dispute resolution team advises clients on the best use of ADR – and when to resist it. We:
- Guide clients through mediation, arbitration, and other processes.
- Assess cost risks of refusing ADR.
- Represent clients robustly if court proceedings remain necessary.
Lewis Nedas is ranked as a top tier firm in the Legal 500 and featured in The Times Best Law Firms. We combine legal expertise with pragmatic advice, ensuring clients understand the risks and opportunities ADR now presents.
Contact our dispute resolution specialists
For expert advice on court-ordered ADR and dispute resolution, contact Lewis Nedas on 020 7387 2032 or complete our online enquiry form. Our experienced lawyers in London are here to protect your interests and provide clear, practical guidance.