English courts no longer call it alternative dispute resolution, because it is normal now
For years, a party in England who refused mediation could not be forced into it. A 2023 Court of Appeal ruling, Churchill v Merthyr, overturned that rule. Judges can now order litigants to try settling outside court, and the old label alternative is giving way to non-court dispute resolution.
The phrase alternative dispute resolution traces to a paper by Frank Sander called Varieties of Dispute Processing. It covers a wide family of methods for settling disagreements with outside help instead of a full trial. Four main types are usually listed: negotiation, where no third party is involved; mediation, where a neutral person guides talks and may float a proposal but decides nothing; collaborative law, in which each side's specially trained lawyer works toward agreement; and arbitration, where a private judge hands down a binding result. Some scholars add conciliation, in which a go-between meets the parties separately and together to calm tempers and explore options.
Popularity has grown for practical reasons: overloaded courts, lower costs, privacy, and the chance to choose who decides. American courts have promoted it since the 1990s, and the 2008 European Mediation Directive allows compulsory mediation, meaning attendance is required even if settlement is not. The 2023 English ruling reversed the 2004 Halsey decision, which had protected unwilling parties from being pushed into such processes. Whether litigants actually know how to find and use these programmes remains unclear.
Arbitration itself is old. Heads of trade guilds once settled quarrels, so a wool contract dispute might be judged by a senior official who was both an expert and a person whose goodwill mattered. Modern commercial arbitrators are easier to hire but lack that social weight. Contracts often include clauses sending any future dispute to arbitration, a practice that courts have scrutinised when it appears in consumer deals like credit card agreements.
Newer variants keep appearing. Early neutral evaluation brings in an expert soon after a case is filed, and in England separating couples can share a single lawyer who advises them together. Mediators also learned that separating the parties after a joint session dramatically raised success rates. Much of this now happens online.
Source: Alternative dispute resolution
