Alternative Dispute Resolution: Pros, Cons and the Right to a Fair Trial

Abstract

ADR has gained popularity in the civil justice system following research done by Lord Woolf who recommended that ADR must be attempted prior to litigation. He, and other scholars have supported this initiative as it has proven to have several advantages such as time and cost efficiency, and flexibility. However, ADR has also been criticised as a concept conflicting with an individual’s right to a fair trial. This article looks into both sides, and evaluates ADR from both perspectives. After weighing the pros and cons of it, this article concluded that ADR supports the principle of the right to a fair trial, but in an indirect way as the advantages allow for access to justice in a more efficient way than litigation does. 

Introduction

Unlike what is portrayed in legal dramas, lawyers don’t often resort to litigation when the parties are in conflict. Both lawyers and court systems alike would advise parties to give Alternative Dispute resolution (ADR) a chance. ADR encompasses various methods for settling civil or commercial disputes without going to trial.[1] Whilst these methods are numerous, mediation and arbitration are the most widely used and extensively examined in both civil and commercial contexts, and will be the focus of this article. Mediation involves a neutral third party who facilitates dialogue between disputing parties to help them reach a mutually acceptable settlement.[2] Arbitration, by contrast, requires the third party to make a binding decision based on the evidence presented.[3] ADR offers several advantages, including time efficiency, reduced costs, and flexibility. However, it also gives rise to challenges, particularly when ADR is considered against the right to a fair trial, which under Article 6 of the European Convention on Human Rights (ECHR) guarantees a hearing within a reasonable time before an independent and impartial tribunal. Based on this concept alone, it would appear that ADR, by keeping parties away from court systems and asking them to settle disputes amongst themselves, the concept of ADR and article 6 ECHR would appear to be in conflict with one another. Whilst ADR is implemented in several jurisdictions worldwide, the primary focus will be the UK’s approach. 

The formal incorporation of ADR into the UK civil justice system was led by Lord Woolf and his research into the flaws of the civil justice system. In his book, Access to Justice: Final Report, he concluded and identified three major flaws in the pre-1999 system: high costs, complexity, and delay.[4] Lord Woolf’s suggestions and reforms emphasised that litigation should be a last resort, only once other resolution methods had been exhausted. His recommendations included requiring civil courts to inform parties of ADR options and extending legal aid funding to cover pre-litigation resolution.[5] These proposals were implemented through the Civil Procedure Act 1997, paving the way for the Civil Procedure Rules (CPR) in 1999. The CPR aimed to make legal proceedings more affordable, efficient, and comprehensible to non-lawyers. Rule 1 sets out the ‘overriding objective’ of enabling courts to deal with cases ‘justly and at proportionate cost’, which is a principle closely aligned with ensuring access to justice and, in turn, safeguarding the right to a fair trial under Article 6 of the ECHR.  This article will examine both the strengths and the limitations of ADR, arguing that, albeit indirectly, it can support and uphold the principles of the right to a fair trial. 

Research Methodology

This article is analytical as it evaluates both the advantages and disadvantages of ADR to answer the question of whether or not it aligns with or violates the right to a fair trial, which under the Human Rights Act 1998, everyone is entitled to. To write this article, research was focused heavily on case law and journal articles. These were mainly gathered through Westlaw and LexisNexis databases where information is guaranteed to be accurate, factual, and credible as they are academic platforms. This research also looked into legislation that was to an extent linked to ADR, such as Civil Procedure Act 1997 and the Arbitration Act 1996, however, these were briefly mentioned as supporting evidence rather than main points. The main focus of the research was case law and journal articles. 

Main Body 

Legal Framework

Besides Lord Woolf’s initiatives to implement ADR into the civil justice system to avoid litigation’s disadvantages, the judicial body has also taken their own initiatives based on Lord Woolf’s recommendations. Court judgments have been just as influential in shaping the role of mediation in the UK and this can be observed particularly in the landmark case of Halsey v Milton Keynes NHS Trust, where the Court of Appeal made it clear that forcing parties to mediate would breach their right to a fair trial and access to the courts under Article 6 of the European Convention on Human Rights.[6] The judges emphasised that mediation must remain a voluntary process. However, courts also highlighted in a different case that refusing to mediate without good reason could impact parties negatively through cost sanctions.[7] This showed their stance regarding mediation, and ADR in broad: that while it cannot be compelled, it is firmly encouraged.

That view shifted in the case of Churchill v Merthyr Tydfil County Borough Council, where the Supreme Court took a bolder stance.[8] Here, the court confirmed that judges do in fact have the power to order parties to mediate if the circumstances justify it as the judgement in Halsey was deemed to be obiter, and therefore, not legally binding. However, whilst this meant that compelling ADR could infringe on parties’ rights to a fair trial, the court highlighted in its judgement that parties will still be free to return to litigation if mediation fails.[9] This is the current leading case regarding mediation, where the courts are prepared to compel parties to attempt ADR, with the option to litigate should this attempt fail. However, the message remains clear: ADR must first be attempted.

Judicial Interpretation

Mediation in the UK has largely been shaped by case law, producing a dynamic yet fragmented legal landscape. Landmark judgments have influenced how mediation is perceived within the civil justice system, however, judicial opinions reveal an inconsistency in determining whether parties can be compelled to mediate.[10] While some judgements have endorsed mandatory mediation, others have found that compelling parties to mediate would  infringe upon the right to a fair trial. Notably, in Halsey, the Court of Appeal held that forcing unwilling parties to mediate would breach Article 6 of the European Convention on Human Rights.[11] This decision has been the subject of considerable debate and criticism, with many arguing that it undermines access to justice by discouraging the broader use of mediation.[12]

However, a change in this perspective came during the Churchill v Merthyr Tydfil County Borough Council case, which led the judiciary to reassess their earlier judgement.[13] The case led to critics and the judicial body to consider whether the Halsey principle had become an obstacle to a more assertive promotion of mediation.[14] Despite this, doctrinal uncertainty persists in the UK regarding the extent of judicial authority to compel mediation.[15] Critics point to conflicting decisions, such as Honda Giken, where the court ordered mediation.[16] Nigel Witham Ltd v Smith, which ruled that mediation cannot be compelled.[17] And C v RHL, where parties were instructed to mediate before proceeding.[18] These are all inconsistent and therefore, critics argue that these inconsistencies create confusion for litigants and practitioners alike as they are unsure of which case courts would follow as precedent should mediation fail and parties have to resort to litigation.[19]

As a result of these inconsistencies, critics called for legislative reform, with some commentators recommending amendments to CPR r.1.4(2)(e) to explicitly empower courts to order mediation, following the example set by New South Wales, Australia.[20] Advocates of this reform argue that it could strike a balance by preserving the voluntary nature of settling disputes while allowing courts to mandate participation in the mediation process itself.[21]

Critical Analysis

One of the primary reasons ADR is promoted and encouraged is its perceived cost efficiency as there are no court procedures involved. However, Professor Hazel Genn’s research into a mediation scheme at the Central London County Court found no conclusive evidence that ADR, particularly mediation universally reduces costs.[22] The study, however, revealed that the total expenses for cases resolved through mediation were significantly lower than those pursued through litigation.[23] It also showed that mediation expedited settlements as 62% of mediated cases were concluded at the mediation appointment itself, therefore, not only cost, but also time efficient as the litigation process would have taken a lot longer as was pointed out by Lord Woolf.[24] While Professor Genn’s research did not confirm that mediation inherently saves costs, it demonstrated that it is generally less expensive than taking a case to court. This cost difference enhances access to justice and aligns with the principles underpinning the right to a fair trial. Nevertheless, critics point out that if ADR fails, the resulting transition to litigation as well as the process can generate additional expenses and delays, potentially undermining its intended efficiencies.[25] Reiterating this concern, the late Sir Gavin Lightman argued that the abolition of public funding has left the problem of high litigation costs unresolved.[26]

ADR’s informality is another one of its key features. It operates without the rigid procedural rules of court hearings, and its confidential nature can make it less intimidating for participants as court procedures are complicated as pointed out by Lord Woolf. This flexibility allows for tailored solutions that might not be achievable within the constraints of formal judicial proceedings. For example, in AI v MT, the High Court approved a divorce settlement reached through arbitration under rabbinical law for a Jewish couple.[27] Although the arbitrator’s decision was not fully compliant with common law, the court endorsed it, illustrating ADR’s capacity to accommodate cultural and religious considerations that might otherwise be overlooked in a traditional courtroom. Such adaptability can promote fairness by recognising the specific nature of disputes, thereby safeguarding the right to a fair trial.

However, ADR’s informality and confidentiality also present drawbacks. The absence of a system of precedent limits consistency and predictability, both of which are fundamental principles of the Rule of Law, which requires equal treatment and consideration for all.[28] Additionally, many ADR outcomes, particularly in mediation, are not legally binding. While arbitral awards are final and enforceable under section 58(1) of the Arbitration Act 1996, mediated settlements rely heavily on trust and voluntary compliance. If a party refuses to honour an agreement, there is often no direct legal recourse. The combination of confidentiality, lack of precedent, and limited enforceability can, in some cases, undermine the transparency, equality, and public scrutiny that are hallmarks of the right to a fair trial.

Recent Developments

While parties are strongly encouraged to consider ADR, the Court of Appeal in Halsey v Milton Keynes General NHS Trust held that compelling unwilling participants to mediate would infringe their Article 6 right to a fair trial.[29] However, in Churchill v Merthyr Tydfil County Borough Council, the Court of Appeal revisited this position, finding that the relevant statement in Halsey was merely obiter dictum and therefore not legally binding.[30] The court concluded that it does, in fact, have the lawful authority to order parties to mediate, or to engage in any form of ADR of their choosing as and this does not interfere with their right to proceed to trial and that the order is proportionate to achieving the objectives set out in CPR 1.[31] Commenting on this development, mediator and senior consultant to the Centre for Effective Dispute Resolution (CEDR), Tony Allen, argues that with judges now possessing the authority to mandate ADR, parties may be more inclined to participate voluntarily rather than wait for a formal order from the court.[32]

Although Halsey established that compelling ADR participation would breach the right to a fair trial, CPR 44.5 empowers courts to impose cost sanctions for an unreasonable refusal to take part in ADR. This creates a tension between preserving free choice and encouraging ADR, as financial penalties may indirectly pressure parties into agreeing to mediation or other processes they would otherwise reject. This issue was highlighted in PGF II SA v OMFS Co 1 Ltd, where the court held that failing to respond to an ADR invitation was, in itself, unreasonable, and applied cost sanctions accordingly.[33] A similar approach was seen in Reid v Buckinghamshire Healthcare NHS Trust, where the penalties extended to the unsuccessful party.[34]

While cost sanctions are intended to promote early settlement and judicial efficiency, they risk influencing parties’ decisions on financial grounds rather than the merits of the dispute. This can therefore create an imbalance of power, where one side participates in ADR reluctantly in order to avoid sanctions rather than from a genuine willingness to resolve the dispute. This raises legitimate concerns about fairness and voluntariness, and whether this truly aligns with the concept of the right to a fair trial when ADR participation is effectively driven by economic pressure rather than informed choice.

Suggestions / Way Forward 

Whilst mediation and ADR in general are considered to be a more appealing alternative to the intimidating process of litigation, it has been criticised and considered to be an infringement on individuals’ right to a fair trial, therefore violating one of the ECHR rights. However, ADR and especially mediation is increasingly promoted as a means of widening access to justice, particularly in times of economic strain. In an address to the Civil Justice Council National Forum, James South, Chief Executive of CEDR (Centre for Effective Dispute Resolution)  highlighted the Council’s capacity to deliver fair, timely, and cost-effective outcomes, especially for small claims and unrepresented litigants.[35] He also challenged the traditional view that access to justice is synonymous with access to the courts, reframing it as access to resolution through varied pathways, including virtual mediation. Advances in technology, such as online mediation platforms and enhanced digital case management systems, have further extended mediation’s reach by lowering both financial and geographical barriers.[36] This expansion has been especially significant in the post-pandemic cost-of-living crisis, enabling fairer access to dispute resolution for a wider range of individuals.

However, these benefits also come with some critical considerations. South also emphasised the importance of rigorous training standards, procedural protections for vulnerable participants, and adequate legal support for litigants in person to ensure that mediation remains not only accessible but substantively fair.[37] Critics caution that in mandatory mediation schemes, particularly in commercial contexts, less powerful parties may feel compelled to accept disadvantageous settlements to avoid the cost and uncertainty of litigation as the opposing party has more means and power than them.[38] This risk is heightened by mediation’s informality, which, while often a strength, can be misused as a procedural formality or a mechanism of subtle coercion rather than a genuine forum for equitable resolution. 

Conclusion

The advantages and disadvantages of ADR highlight a nuanced relationship between its benefits and the right to a fair trial. On one hand, ADR improves accessibility and reduces the financial burdens often associated with litigation, aligning with fair trial principles by promoting timely and affordable justice, especially as critics point out, access to justice in today’s time should not exclusively constitute access to courts, but rather access to time and cost efficient resolutions, which often lay in ADR. On the other hand, the use of cost sanctions for refusing to engage in ADR can create tension with this right, as parties may participate primarily to avoid financial penalties rather than to genuinely resolve the dispute. However, whilst these cost sanctions aim to discourage unnecessary litigation, they are generally imposed for unreasonable refusals to attempt any form of ADR. The core benefits of ADR are enhanced accessibility, lower costs compared to court proceedings, and a more informal, flexible structure and they can be seen as an indirect embodiment of the right to a fair trial, ensuring that disputes are heard fairly, within a reasonable time, and before an impartial tribunal established by law. Therefore, ADR can arguably be seen as the response to the right to a fair trial in today’s age.

Bibliography

Primary Sources:

Legislation:

Arbitration Act 1996

Civil Procedure Act 1997

Human Rights Act 1998

Case Law:

AI v MT (Alternative Dispute Resolution) [2013] EWHC 100 (Fam)

C v RHL [2005] EWHC 873 (Comm)

Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416

Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576

Honda Giken Kogyo Kabushiki Kaisha v Neesam [2009] EWHC 1213 (Pat)

Nigel Witham Ltd v Smith [2008] EWHC 12 (TCC)

PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288

Reid v Buckinghamshire Healthcare NHS Trust [2015] 10 WLUK 752

Rules of Court:

Civil Procedure Rules

International Treaties:

European Convention on Human Rights

Secondary Sources 

Journal Articles:

Ahmed M., “Implied Compulsory mediation’ (2012) 31(2) Civil Justice Quarterly 151

Allen T., ‘ADR after Churchill’ (2023) 173(8053) New Law Journal 7

Billingsley B. and Ahmed M.,  ‘Evolution, revolution and culture shift: A critical analysis of compulsory ADR in England and Canada’ (2016) 45(2-3) Common Law World Review 186

Davies G., ‘Civil Justice Reform: Why We Need to Question some Basic Assumptions’ (2006) 25 Civil Justice Quarterly 32

Fiss O. M., ‘Against Settlement’ (1984) 93 Yale Law Journal 1073

Genn H., ‘Appendix: The Central London County Court Pilot Mediation Scheme Evaluation Report’ [2001] 67(1) Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 109

Lightman G., ‘The Civil Justice System and Legal Profession’ (2003) 22 Civil Justice Quarterly 235

Milgo M., ‘The case for express compulsory mediation in England and Wales’ (2021) 10(1) UCL Journal of Law and Jurisprudence 1 

Textbooks/Publications:

Allbon E and Kaur Dua S, Elliott & Quinn’s English Legal System (21^st edn, Pearson 2020)

Genn H., Judging Civil Justice (CUP 2009)

Slapper G and Kelly D, The English Legal System (18th edn, Routledge 2017)

Susskind R., Online Courts and the Future of Justice (OUP 2019)

Woolf H, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO 1996)

Oxford Dictionary of Law (9th edn, Oxford University Press 2015)

Websites:

CEDR Chambers, ‘Mediation as a means of Improving access to Justice in a Cost-of-Living Crisis.’ (Lexology, November 21 2023) <https://www.lexology.com/library/detail.aspx?g=38b7075b-3424-4279-9d06-44319ded6c73> accessed 11 August 2025

[1] Oxford Dictionary of Law (9th edn, Oxford University Press 2015).

[2] Emily Allbon and Sanmeet Kaur Dua, Elliott & Quinn’s English Legal System (21^st edn, Pearson 2020) 733.

[3] Ibid.

[4] Harry Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO 1996).

[5] Ibid.

[6] Halsey v Milton Keynes NHS Trust [2004] 1 WLR 3002.

[7] PGF II SA v OMFS Company 1 Ltd [2014] 1 WLR 1386.

[8] Churchill v Merthyr Tydfil County Borough Council  [2024] 1 WLR 3827.

[9] Ibid [74].

[10] Mercy Milgo, ‘The case for express compulsory mediation in England and Wales’ (2021) 10(1) UCL Journal of Law and Jurisprudence 1.

[11] Halsey (n 6) [10].

[12] Hazel Genn, Judging Civil Justice (CUP 2009).

[13] Churchill (n 8).

[14] Tony Allen, ‘ADR after Churchill’ (2023) 173(8053) New Law Journal 7.

[15] Barbara Billingsley and Masood Ahmed, ‘Evolution, revolution and culture shift: A critical analysis of compulsory ADR in England and Canada’ (2016) 45(2-3) Common Law World Review 186.

[16] Honda Giken Kogyo Kabushiki Kaisha v Neesam [2009] EWHC 1213 (Pat).

[17] Nigel Witham Ltd v Smith [2008] EWHC 12 (TCC).

[18] C v RHL [2005] EWHC 873 (Comm).

[19] Billingsley (n 15).

[20] Masood Ahmed, “Implied Compulsory mediation’ (2012) 31(2) Civil Justice Quarterly 151 [161].

[21] Ibid.

[22] Hazel Genn, ‘Appendix: The Central London County Court Pilot Mediation Scheme Evaluation Report’ [2001] 67(1) Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 109.

[23] Ibid 110.

[24] Ibid.

[25] Geoffrey Davies, ‘Civil Justice Reform: Why We Need to Question some Basic Assumptions’ (2006) 25 Civil Justice Quarterly 32.

[26] Gavin Lightman, ‘The Civil Justice System and Legal Profession’ (2003) 22 Civil Justice Quarterly 235.

[27] AI v MT (Alternative Dispute Resolution) [2013] EWHC 100 (Fam).

[28] Slapper and David Kelly, The English Legal System (18th edition, Routledge 2017).

[29] Halsey (n 6).

[30] Churchill (n 8).

[31] Ibid [74].

[32] Allen (n 14).

[33] PGF II (n 7).

[34] Reid v Buckinghamshire Healthcare NHS Trust [2015] 10 WLUK 752.

[35] CEDR Chambers, ‘Mediation as a means of Improving access to Justice in a Cost-of-Living Crisis.’ (Lexology, November 21 2023) <https://www.lexology.com/library/detail.aspx?g=38b7075b-3424-4279-9d06-44319ded6c73> accessed 11 August 2025.

[36] Richard Susskind, Online Courts and the Future of Justice (OUP 2019).

[37] CEDR Chambers (n 34).

[38] Owen M. Fiss, ‘Against Settlement’ (1984) 93 Yale Law Journal 1073.