Last year the Court of Appeal ruled (in Churchill v Merthyr Tydfil) that the courts can stay proceedings to order parties in dispute to engage in alternative dispute resolution (ADR), including mediation. The landmark decision was widely welcomed across the legal sector and marked another step in the growth of opportunities for barristers to engage with mediation and other non-court-based dispute resolution (NCDR).

A breakout session at Bar Conference 2024 will look at the case and explore where the opportunities might lie for barristers to diversify their work beyond the courtrooms of England and Wales. Delegates are encouraged to join the session, chaired by Spenser Hilliard (Field Court Chambers), to ask any questions about NCDR.

Ahead of the event, we asked the panellists why and how the landscape is changing and what delegates can expect to learn from their session. Spenser Hilliard, Grace Cheng (39 Essex Chambers), Andrew Day (St Ives Chambers) and Andrew Parsons (Portsmouth Barristers’ Chambers) share their thoughts.

What is the most significant recent change in the world of alternative dispute resolution that barristers should be aware of?

Andrew Day: For family lawyers, the most significant development of recent times has been the amendment of the Family Procedure Rules 2010, by the Family Procedure (Amendment No. 2) Rules 2023, with effect from April 2024, to empower the Family Court to:

  1. give directions (on an application or of its own motion, with or without parties’ consent) to encourage them to obtain information and advice about, consider using, and undertake non-court dispute resolution;
  2. require parties for file standard form statements setting out their positions on the use of non-court dispute resolution, akin to those filed under an Ungley order, but open rather than without prejudice save as to costs; and
  3. treat the failure of a party to financial remedy proceedings, without good reason, to attend non-court dispute resolution as litigation conduct which may justify a departure from the general rule that there should be no order as to costs.

Grace Cheng: In the realm of commercial law, we have seen the rise in recent years of International Commercial Courts, for example, the Singapore International Commercial Court (SICC); the Dubai International Financial Centre (DIFC) Courts; and the Qatar International Court (QICDRC). Many of these courts comprise judges from both civil and common law jurisdictions, and some of these courts allow advocates to appear before them even if they are foreign lawyers. Some cases may even be brought before some of these courts even if they have no connection with the forum. Some of these courts are a hybrid of the traditional court structure and arbitration which gives rise to an interesting discussion of the interplay between litigation and arbitration, with the rise of these new developments.

Andrew Parsons: Worldwide, there have recently been a huge number of significant changes, all of which demonstrate that in an increasing number of jurisdictions ADR is accepted as a preferred way to try to resolve disputes. This is for example demonstrated by the number of states that have signed up to the Singapore Convention on Mediation.

With the jurisdiction of England and Wales, the most significant recent change is undoubtedly the judgment of the Court of Appeal in on 29 November 2023 in the case of Churchill v Merthyr Tydfil [2023] EWCA Civ 1416, which for the first time establishes that where appropriate a judge can order parties to engage in what the Court described as “non-court-based dispute resolution process” – “NCBDR.”

Where do you see the opportunities emerging for barristers in ADR?

Spenser Hilliard: As far as opportunities for barristers are concerned, early neutral evaluation (ENE) is likely to be given a significant boost by Churchill v Merthyr Tydfil.  The case of Lomax v Lomax 2019 EWHC 1267 had already established, pre-Churchill, that courts can order ENE. That power, though, was being grossly underused.

In Churchill, the Master of the Rolls brought ENE to the forefront of the court's considerations. At para 59 he said: “Even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court-based dispute resolution are, in general terms, cheaper and quicker than court-based solutions.” He went on to repeat this emphasis on ENE in para 64.

A carefully prepared ENE can act similarly to a financial dispute resolution (FDR) in family proceedings where settlement rates are high. It’s my view that judges will now increasingly order ENE in civil cases. Members of the Bar, especially those with specialist practices, are well positioned to fulfil the new demand.

Andrew Parsons: Worldwide, there are now so many opportunities for barristers, due to an increasing number of jurisdictions accepting ADR as a preferred way to try to resolve disputes. Gaining knowledge about dispute resolution processes in those jurisdictions is essential.

With the jurisdiction of England and Wales, due to the Churchill v Merthyr Tydfil case, there are likely to be great opportunities for those barristers who can advise about NCBDR. For example: (1) What counts as NCBDR? (2) In what circumstances is the court likely to order it?

Grace Cheng: For barristers who are keen to develop or build on their international practice, many jurisdictions have set up their own arbitral institution centres. For example, in recent years, we have seen the development of the Tashkent International Arbitration Centre (2018), and the Indonesia International Arbitration Center (2021).

There are also arbitral institution centres which have a more specialised focus, such as the Court of Arbitration for Art which was founded to resolve disputes in the art community through mediation and arbitration, and Sport Resolutions which is a dispute resolution service for sport. This greatly increases opportunities for barristers in ADR including the potential for ADR work overseas.

Andrew Day: In family law, the recent rule changes (and the ongoing evolution in culture that they both reflect and are intended to promote) are likely to open up a host of new opportunities for barristers acting as arbitrators, mediators, early neutral evaluators and private Financial Dispute Resolution ‘judges’, and as specialist advocates with particular expertise in presenting cases in non-court dispute resolution contexts.

Why should barristers attend ‘Future proofing your practice through ADR’ at Bar Conference 2024?

Andrew Day: For civil and family lawyers, non-court dispute resolution may well be the single most important growth area of the next few years and it is vital that they should understand why that is and what new opportunity it may open up for them.

Grace Cheng: ADR is an increasingly important area for barristers to be aware of, and understand, even if they do not think of themselves as ‘ADR lawyers’, especially in light of the proposed draft amendments to the Civil Procedure Rules concerning ADR which is likely to lead to ADR playing a much more prominent role.

Andrew Parsons: To diversify your skill set. To learn about different types of NCBDR. To learn more about the Churchill v Merthyr Tydfil case from leading counsel Michel Kallipetis KC who successfully represented Merthyr Tydfil. Finally (just as importantly) to learn about the opportunities that exist for barristers who can advise about NCBDR.

Join the conversation

‘Futureproofing your practice through alternative dispute resolution’ takes place at 13:00-14:00 on Saturday 8 June at Bar Conference 2024 in London. Find out more and book your place.

About our contributors

Spenser Hilliard is a very experienced barrister and commercial mediator who has taught mediation skills extensively both nationally and internationally. Spenser chairs the Bar Council ADR Panel and is a member of the Judicial ADR Liaison Committee.

Grace Cheng is a barrister and arbitrator. She has rights of audience before the AIFC Court (Kazakhstan), DIFC Courts (Dubai), SICC (Singapore) and is a qualified solicitor in Hong Kong. Grace is a versatile advocate, specialising in commercial litigation and arbitration, and with experience in many different areas of the law. She has received over 30 appointments as neutral dealing with disputes in a diverse range of areas.

Andrew Day is a Birmingham-based family practitioner, with 20 years’ experience as a specialist in complex financial remedy work and a particular interest in non-court dispute resolution. He sits as an arbitrator under the Institute of Family Law Arbitrators’ financial scheme and is regularly instructed as a neutral evaluator for the purposes of private financial dispute resolution appointments. 

Andrew Parsons is a specialist barrister, mediator and arbitrator with a commercial background and over 30 years of experience in work concerning business, commerce, finance and property. In 1998, he was one of the first English barristers to become an accredited commercial mediator. Since 2008, he has been a member of the Bar Council ADR Panel.