CPR rule changes; are litigators ready to mediate effectively given mediation is now effectively compulsory

CPR rule changes; are litigators ready to mediate effectively

Changes are proposed to the Civil Procedure Rules re mediation; the key question for litigators is, are litigators ready to mediate effectively, given mediation is now effectively compulsory.

Soon being a great litigator is not going to be good enough to get the right result for a client embroiled in a dispute. The recent work by the Civil Procedure Rule Committee (CPRC) is only the latest reason why.

The Churchill(1) case made it clear the UK courts can “stay proceedings for, or order, the parties to engage in a non-court based dispute resolution process”, without contravening Article 6 of the European Convention on Human Rights. To reinforce that judgement, and following consultation(2), the CPRC will be introducing adjustments to the Civil Procedure Rules (CPR).

A summary of the changes proposed is set out in the appendix to this note. These are minor amendments to the CPR which, in essence, could and probably should from their inception, have been construed in the way they are now to be amended. Their purpose is to reinforce and emphasise, to the judiciary, to litigators and to litigants themselves, that alternative dispute resolution generally and, in particular mediation, is not optional. They are the latest indication that, in the UK, government policy and judicial sentiment is moving us to position where mediation is going to be compulsory for the vast majority of cases(3). Consequently most cases will end with a mediated settlement, not with a trial.

That means litigators need to be as good at guiding their clients through mediation as they are in guiding them through litigation/arbitration processes. That means thinking fundamentally about what mediation really is, how its dynamics are different from litigation, and what skills and capabilities litigators need to get the right results for their clients.

So it will take you 1 minute to read and absorb the Churchill related CPRC changes to the CPR rules. The key question is, how much time are litigators spending thinking strategically about their approach to mediation, and how, through mediation, they can secure the best outcomes.

Appendix – summary of changes to CPR

  • “Changes to 1.1 would add that dealing with a case justly and at proportionate cost includes, so far as practicable, using and promoting ADR methods. Reference to ADR within the overriding objective would underline that considering the use of ADR should be a key part of the court process;
  • Changes to 1.4 and 3.1 would clarify the position established in Churchill v Merthyr Tydfil that judges may order as well as encourage parties to participate in ADR procedure;
  • Changes to Parts 28 and 29 would add that courts must consider whether to order or encourage parties to participate in ADR for fast-track, intermediate track and multitrack claims; and
  • Changes to Part 44 would add that failure to comply with an order for ADR or unreasonable failure to participate in ADR proposed by another party would come under the consideration of the conduct of parties when deciding to make any order about costs.”

(1) James Churchill -v- Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416

(2) https://www.gov.uk/government/organisations/civil-procedure-rules-committee/about

(3) It is explicitly compulsory for small claims (i.e. those up to a value of £10,000) and that requirement is likely to be extended to higher value cases. Judgments issued prior to and including Churchill have also made it clear that the higher levels of the judiciary expect parties to attempt to settle their cases through mediation, and that they are prepared to impose cost orders on those who unreasonably refuse to do so.