Harnessing the ELI/UNIDROIT Model European Rules of Civil Procedure in promoting ‘judicial ADR activism’ in the English civil justice system

This article focuses on the role of the English civil courts in ordering parties to resort to alternative dispute resolution (ADR) during proceedings following the landmark Court of Appeal decision of Churchill v Merthyr Tydfil County Borough Council and the subsequent amendments to the Civil Procedure Rules, which make explicit the courts’ powers to make compulsory ADR orders. It argues that, for ADR to be a truly integral part of the civil court process, the courts should refrain from simply making ADR orders routinely, which, in the vast majority of cases, will mean a referral to mediation. Rather, the courts must adopt a more proactive and structured approach when considering whether to make an ADR order, which I refer to as ‘judicial ADR activism.’ Judicial ADR activism consists of four interrelated elements that require the courts to: (i) fully embrace and exercise their ADR powers; (ii) have a detailed understanding of the nature and full range of ADR procedures beyond simply mediation, which I refer to as ‘judicial ADR pluralism’; (iii) actively and constructively engage in an ‘ADR dialogue’ with the parties to ascertain the most appropriate ADR procedure; and (iv) increasingly conduct ADR processes themselves. The article argues that Rule 10 (the role of the court in settlement) of the European Law Institute/Unidroit Model European Rules of Civil Procedure can provide inspiration, guidance, and assistance in strengthening the procedural framework for the promotion of judicial ADR activism within the English civil court process.