A Broadening of Court-Ordered ADR

While many courts – particularly the larger ones in urban areas – run their own arbitration program, these are typically for smaller cases.  Cases are heard by court-appointed or court-affiliated arbitrators who are either court employees or private attorneys who are given a small stipend for their time.  Courts also run in-house mediation programs, with the same sort of structure, though stipends for private attorneys who mediate tend to be rarer.

But could things be changing?

An appeals court in the United Kingdom ruled yesterday that courts there have the authority to stay court proceedings and order parties to proceed with “non-court based dispute resolution procedures”.  In other words, court-ordered private arbitration or mediation.  In the case Churchill v. Merthyr Tydfil County Borough Council ([2023] EWCA Civ 1416), the court sided with the notion of fast, efficient and economical resolution. 

Without giving any brightline tests, the court said that there were several factors that needed to be taken into consideration by a trial court, including the form of ADR, whether or not the parties are represented by counsel, the urgency of the case, the detrimental effects associated with delay, the costs involved and the parties’ relative bargaining power.  In other words, not an absolute.

But the true impact – the validation and ratification of private ADR as a court-ordered alternative – is what will carry forward.  As a viable solution to clogged dockets and overburdened courts, this type of reasoning should cross the Atlantic and be adopted in the U.S.

 To read the opinion, click here.