The Civil Procedure Rules (CPR), the main rules which govern the conduct of litigation in the civil courts are updated regularly. However, the recent changes may lead to some of the most fundamental change in how disputes are settled in the court since the procedure rules were created.

All of this change is caused by the Court of Appeal decision in Churchill v Merthyr Tydfill and the consequences of that. I wrote about the case before it was heard and my colleagues wrote about some of the effects of the decision. In short though the Court of Appeal held that there was nothing wrong with forcing parties to enter into ADR before issuing claims and that the courts were empowered to order parties to make use of it if they failed to do so themselves. The new rule changes give effect to that decision.

The first, and possibly most critical change is the alteration of the overriding objective. This is the underlying set of principles that courts are required to follow to ensure justice and all the other rules are required to be interpreted in accordance with them. A new principle has been addled which requires the court to promote and use ADR. The general case management powers of the court have been similarly altered to permit the court to order parties to engage in ADR. The rules for the fast and multi track have been altered as well to allow the court to give directions in cases to require parties to engage in ADR or to encourage them to do so. When giving directions the court is also now expressly required to consider whether it is appropriate to order or encourage the parties to engage in ADR. The rules on costs have also been tweaked to make it clear (although it already was pretty clear) that engagement with ADR is a factor when considering costs.

So what will this all mean in practice? I would anticipate things will start slowly. Courts have encouraged ADR for some time and they will probably continue to do so. I doubt that many judges will be persuaded to order ADR to begin with. But that will change. Eventually, such an order will be made and it will probably end up with the appeal courts. They will likely clarify the criteria for making such offers but will also probably push the point that courts should be requiring parties to enter into CPR. Likewise, the courts have long been able to encourage ADR and there is a standard direction that is commonly inserted into court orders which says the parties should seek to use ADR and any party refusing should prepare a witness statement explaining why they elected not to do so. This is likely to see little initial change but again one or more judges are likely to create more forceful directions over time. On costs the picture has been mixed. Ignoring a request to mediate has long attracted a costs penalty but refusal to mediate has not always been similarly punished. Courts have frequently allowed parties to claim they were too far apart or that mediation would have had little prospect of success. I suspect that the rules changes will lead to a harder position on costs for those who reject mediation although this will again take time.

Finally, the new rules are about ADR, not mediation. Although mediation currently dominates the ADR space it is not the only means of resolving disputes and it is entirely possible that other options will appear. For example, there are already compulsory ADR schemes for letting and estate agents as well as for social landlords. These are soon expected to be brought into effect for private landlords as well. It will be interesting to see how a court responds to a demand that an ombudsman or another form of ADR is used. Some judges will no doubt refuse but, again, one such case will likely end up in an appeal court and I suspect that the appeal courts will require the use of such schemes as long as they are sufficiently robust.