The position has changed: Halsey v Milton Keynes held that a court could encourage but not compel mediation, but Churchill v Merthyr Tydfil now allows a court to order or stay proceedings for ADR within the limits of proportionality and the right to a hearing, a binding contractual ADR clause will be enforced, and an unreasonable refusal can still cost a successful party its costs

The position has changed. For years the leading view, from Halsey v Milton Keynes General NHS Trust, was that a court could encourage but not compel mediation, since ordering an unwilling party to mediate would breach the right to a fair trial; a court could, however, penalise an unreasonable refusal in costs. Churchill v Merthyr Tydfil County Borough Council has now held that a court may lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process, provided the order does not impair the essence of the right to a judicial hearing and is proportionate. The Civil Procedure Rules now reflect this: from 1 October 2024, rule 1.4(2)(e) includes ordering or encouraging, and facilitating, alternative dispute resolution within the court's active case management. Two long-standing points still hold: where the contract contains a binding dispute-resolution clause the court will enforce it, as in Cable and Wireless v IBM, and an unreasonable refusal to mediate can cost a successful party its costs, as in Dunnett v Railtrack, though refusal is not always unreasonable, as Hurst v Leeming shows. A court can now direct ADR, within limits, and a party who refuses without good reason still risks a costs sanction.