Introduction
The decision of the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, confirming that courts may lawfully order parties to engage in non-court-based dispute resolution processes, marked a decisive shift in civil justice in England and Wales. Combined with the introduction of the Automatic Referral to Mediation scheme for specified small claims from May 2024, the procedural landscape now includes forms of mandatory mediation that would have been considered constitutionally impermissible only a decade earlier. The central question is whether this development changes what “access to justice” means in England and Wales, or whether it merely changes the route through which justice is accessed.
This essay argues that mandatory mediation has substantively changed the meaning of access to justice, but not in the straightforwardly corrosive way that critics suggest. Rather, it has displaced a litigation-centred conception of access to justice — one equating justice with adjudication — in favour of a pluralist conception in which appropriateness of process, practical resolution and proportionality are treated as constitutive elements of justice itself. This reconception is defensible, but only if adequate safeguards protect the right to adjudication as a residual guarantee, ensure quality control in mediation processes, and prevent mandatory mediation from operating as a de facto barrier to justice for vulnerable or unequal parties. The current framework does not yet fully deliver those safeguards.
The Traditional Conception: Access to Justice as Access to Adjudication
For most of the twentieth century, access to justice in England and Wales was understood primarily as access to courts and to legal representation. The foundational expression of this principle appears in Article 6(1) of the European Convention on Human Rights, which guarantees the right to a fair and public hearing by an independent and impartial tribunal in the determination of civil rights and obligations. Domestically, this right is given effect through section 6 of the Human Rights Act 1998, which makes it unlawful for public authorities — including courts — to act incompatibly with Convention rights.
The common law has long recognised a cognate principle. In R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court struck down employment tribunal fees on the basis that they effectively prevented access to justice, with Lord Reed emphasising that the right of access to the courts is inherent in the rule of law and not merely a procedural nicety (at [68]–[78]). This reasoning treated court adjudication as the paradigmatic form of justice to which access must be secured. Similarly, Lord Diplock in Bremer Vulkan v South India Shipping [1981] AC 909 described the right of access to the court as a constitutional right.
This adjudication-centred model was reinforced by the legal aid framework. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) dramatically reduced the scope of civil legal aid, but the normative assumption remained that the state’s obligation was to facilitate access to court proceedings, not to alternative processes. The cuts to legal aid were criticised precisely because they impeded access to courts and tribunals (Amnesty International, 2016). The dominant frame of analysis thus equated justice with the opportunity to obtain a binding, rights-based determination from an independent adjudicator.
The Shift: From Halsey to Churchill
The doctrinal foundation for mandatory mediation was laid incrementally. The Civil Procedure Rules 1998 (CPR), introduced following Lord Woolf’s Access to Justice reports (1995, 1996), embedded proportionality and case management as core principles. CPR r.1.1 defines the overriding objective as enabling the court to deal with cases justly and at proportionate cost, and r.1.4(2)(e) expressly requires courts to encourage the use of alternative dispute resolution (ADR). However, for two decades, the dominant judicial interpretation held that the court could encourage but not compel parties to mediate.
The locus classicus was Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, in which Dyson LJ stated, obiter, that ordering parties to mediate against their will would be “regarded as an unacceptable constraint on the right of access to the court” and therefore a violation of Article 6 (at [9]). This dictum shaped practice for nearly twenty years. Courts could impose adverse costs consequences on parties who unreasonably refused to mediate — as confirmed in PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288, where silence in the face of a mediation invitation was itself treated as unreasonable — but the line between encouragement and compulsion was formally maintained.
Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 decisively departed from Halsey on this point. Sir Geoffrey Vos MR, delivering the judgment of the Court, held that the Halsey obiter dictum on compulsory ADR was wrong. The court held that ordering parties to engage in a non-court-based dispute resolution process does not, of itself, violate Article 6, provided that the order does not impair the very essence of the claimant’s right to a judicial determination and is proportionate (at [62]–[71]). The court drew on the jurisprudence of the European Court of Human Rights, particularly Momčilović v Croatia (Application no. 11239/11, 26 March 2015), to support the proposition that mandatory ADR is compatible with Article 6 provided the parties retain the ultimate right to proceed to adjudication.
The significance of Churchill is difficult to overstate. It removed the constitutional objection that had previously limited the court’s case management powers. The practical consequence followed swiftly: in May 2024, HM Courts and Tribunals Service implemented automatic referral to mediation for specified small claims in county courts, making participation in a mediation appointment a default procedural step rather than an optional one.
Reconceiving Access to Justice: From Adjudication to Appropriate Resolution
The critical question is whether these developments merely add a procedural step before adjudication, or whether they alter the normative content of access to justice itself. The stronger reading is that they do the latter. If the civil justice system now treats mediation not merely as an option but as an expected — and in some cases required — process, then the system implicitly defines justice as encompassing more than rights-based determination by a judge. It treats consensual, facilitated resolution as a legitimate form of justice in its own right.
This reconception draws intellectual support from the “appropriate dispute resolution” movement. Hazel Genn, in her influential Hamlyn Lectures, cautioned against conflating settlement with justice, arguing that ADR risks privatising disputes and undermining the public function of adjudication in developing legal norms (Genn, 2010). However, other scholars have argued that a plurality of dispute resolution processes better serves the interests of parties. Andrew Higgins has argued that the Woolf reforms already embedded proportionality as a governing principle that logically supports directing parties to the process best suited to their dispute (Higgins, 2021). Neil Andrews has similarly argued that the modern civil justice system properly understood is a system of managed dispute resolution, not a system of universal adjudication (Andrews, 2019).
The reconception is visible in the language of Churchill itself. Sir Geoffrey Vos MR framed the issue not as whether parties could be denied a court hearing, but as whether requiring engagement with mediation as a step in the justice process was a proportionate interference with Article 6 rights — and concluded that it was, because the right to adjudication is preserved as an ultimate backstop (at [71]). This reasoning treats access to justice as access to an appropriate process culminating in the availability of adjudication, rather than as immediate and unconditional access to adjudication itself.
This is a genuine conceptual shift. Under the Halsey framework, justice was presumptively located in the courtroom, and mediation was a supplement. Under the post-Churchill framework, justice is located in the system as a whole, and the courtroom is one mechanism within that system — privileged, but not uniquely constitutive of justice.
The Case for the Reconception: Proportionality, Practical Access and the Limits of Litigation
There are substantial reasons for regarding the reconception as defensible. First, for a large proportion of civil disputes — particularly low-value claims, neighbour disputes, consumer complaints and small debts — court adjudication is disproportionately expensive, slow and adversarial. The Civil Justice Council has noted that court processes can impose costs and delays that deter meritorious claims, particularly for litigants in person (Civil Justice Council, 2021). In this context, mandatory mediation may improve access to justice in the practical sense: it offers parties a realistic opportunity for resolution that they would not otherwise have.
Second, the erosion of civil legal aid following LASPO 2012 means that, for many disputants, the right to adjudication is already more theoretical than real. If parties cannot afford representation and courts are under-resourced, then insisting that access to justice means access to adjudication risks preserving a formal right that is practically hollow. Mandatory mediation can be understood as a pragmatic response to this access gap. As Dame Hazel Genn herself has acknowledged, the promise of court adjudication means little when the courts are inaccessible in practice (Genn, 2010, p. 117). However, Genn’s preferred response is to restore funding and access to courts, not to substitute mediation — a distinction that matters normatively.
Third, the post-Churchill framework retains the right to adjudication as a residual guarantee. No party is compelled to settle; mandatory mediation requires participation in the process, not agreement to a particular outcome. The European Court of Human Rights has accepted this distinction. In Momčilović, the court confirmed that compulsory conciliation does not breach Article 6 provided the parties retain the right to bring their claim before a court. Accordingly, the reconception does not extinguish the right to adjudication but reorders the procedural sequence through which that right is exercised.
The Case Against: Structural Risks and the Limits of Safeguards
Nevertheless, there are serious concerns about whether mandatory mediation, as currently implemented, adequately protects the values that the traditional conception of access to justice was designed to secure. Four risks warrant careful analysis.
Power imbalances and the erosion of rights-based outcomes
Mediation is a consensual, interest-based process. Its strength — flexibility — is also its weakness where parties are unequal. A tenant facing a well-resourced landlord, or a consumer disputing a claim by a large corporation, may agree to a mediated outcome that reflects relative bargaining power rather than legal entitlement. The concern is that mandatory mediation effectively pressures weaker parties to compromise on their legal rights. Linda Mulcahy has argued that the informality of mediation can reproduce and entrench existing inequalities, because the absence of procedural protections and legal standards removes the framework that would otherwise protect the weaker party (Mulcahy, 2013). The court in Churchill acknowledged that any mandatory ADR order must be proportionate, but offered limited guidance on how proportionality should be assessed where significant power imbalances exist. This is a gap in the current framework that has not been adequately addressed.
The practical compulsion to settle
Although mandatory mediation formally preserves the right to adjudicate, there is a risk that the practical pressures of the process amount to compulsion to settle. If a party is referred to mediation and refuses to settle, they may face costs sanctions, judicial disapproval or further delay. The costs regime under CPR Part 44, as interpreted in PGF II SA, already penalises unreasonable failure to engage with ADR. When mediation is mandatory, the pressure to participate and to reach agreement is intensified. For litigants in person, who now constitute a majority of parties in many county court proceedings, the distinction between a requirement to participate and a requirement to settle may be opaque. In this sense, mandatory mediation may operate as a de facto barrier to adjudication even though it is not, de jure, a denial of the right to adjudicate.
The public dimension of justice
Genn’s most powerful objection to the expansion of ADR is that adjudication performs a public function that mediation cannot replicate (Genn, 2010, pp. 116–121). Court judgments develop legal norms, create precedent, hold public and private actors accountable and make the administration of justice visible. Mediation, by contrast, is private and confidential. If an increasing proportion of disputes are resolved through mediation, the common law loses the raw material from which it develops. This concern is particularly acute in areas such as housing, employment and consumer law, where systemic issues may be masked by individual settlements. The mandatory mediation scheme for small claims, by diverting a high volume of cases away from adjudication, risks reducing the number of judicial decisions in precisely the areas where precedent is most needed to protect repeat-play disadvantaged parties.
Quality and regulation of mediation
A further concern relates to the quality and consistency of the mediation process itself. The current Automatic Referral to Mediation scheme uses telephone-based mediation sessions of limited duration. There is no statutory regulation of mediator qualifications, and the quality assurance framework is largely self-regulatory through voluntary accreditation bodies such as the Civil Mediation Council. If access to justice is now defined partly in terms of access to mediation, then the absence of robust regulatory standards for mediation is a significant structural weakness. Parties referred to mandatory mediation are entitled to expect that the process meets minimum standards of fairness, competence and impartiality — yet the current framework provides limited statutory guarantees of those standards.
Evaluating the Reconception: A Qualified Defence
The most persuasive analysis recognises that the reconception of access to justice is neither a simple improvement nor a straightforward erosion of rights. Mandatory mediation has changed the meaning of access to justice in England and Wales by embedding a pluralist model in which justice is understood as the availability of appropriate and proportionate dispute resolution processes, with adjudication as an ultimate guarantee rather than a default expectation. This is a defensible development, provided it is accompanied by adequate institutional safeguards.
The reconception is defensible because the traditional adjudication-centred model was already failing to deliver practical justice for many disputants. Court fees, delays, complexity and the withdrawal of legal aid had rendered the formal right to adjudication inaccessible in practice. Mandatory mediation offers a more realistic route to resolution for low-value and straightforward disputes. In this respect, it improves access to justice in the practical, substantive sense even as it modifies the formal, procedural sense.
However, the reconception is only legitimate if the following conditions are met. First, the right to adjudication must remain genuinely available, not merely formally preserved. If costs sanctions, delay and procedural complexity make it prohibitively difficult for a party who has participated in mediation to proceed to court, then the right is illusory and Article 6 is violated in substance. Second, mandatory mediation must incorporate safeguards against power imbalances, including screening mechanisms to identify cases where mediation is inappropriate — for instance, cases involving domestic abuse, fraud, or significant inequality of arms. Third, the quality and regulation of mediation services must be strengthened, ideally through statutory minimum standards for mediator accreditation, training and conduct. Fourth, mechanisms must exist to ensure that systemic legal issues are not entirely diverted from adjudication; the courts must retain a sufficient flow of cases to develop legal norms in areas where precedent serves a public function.
The current framework meets some of these conditions but not all. Churchill affirms the residual right to adjudication and imposes a proportionality requirement on mandatory ADR orders, which provides a doctrinal basis for protecting parties from disproportionate interference. However, the practical enforcement of that proportionality requirement is uncertain. The Automatic Referral to Mediation scheme includes exemptions for certain case types, but the exemption categories are narrow, and there is limited evidence that the screening process is sufficiently robust to identify vulnerable parties. The regulation of mediation remains predominantly voluntary, and the Civil Mediation Council’s accreditation standards, while valuable, lack statutory force.
Comparative Perspective: Lessons and Limits
The experience of other jurisdictions is instructive, though not directly transplantable. In Italy, mandatory mediation was introduced for certain civil disputes by Legislative Decree 28/2010 and survived a constitutional challenge before the Constitutional Court in 2012, which held that mandatory mediation did not violate the right of access to justice provided it did not impose excessive burdens and preserved the right to adjudicate. The Italian experience suggests that mandatory mediation can coexist with constitutional guarantees of access to justice, but also reveals practical difficulties: low settlement rates in some categories and concerns about the quality and cost of mediation services (Ferraris, 2017). In Australia, the Federal Court and various state courts have long exercised powers to order mediation, and the empirical evidence suggests that mandatory mediation achieves settlement in a significant proportion of cases, though critics note that settlement rates alone do not measure justice (Sourdin, 2016).
These comparisons reinforce the conclusion that mandatory mediation is compatible with access to justice in principle, but that its legitimacy depends on contextual safeguards. England and Wales is relatively early in its implementation of genuinely mandatory mediation, and the adequacy of the safeguarding framework will need to be assessed empirically as the scheme matures.
Conclusion
Mandatory mediation has changed the meaning of access to justice in England and Wales. The shift, crystallised in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 and implemented through the Automatic Referral to Mediation scheme, moves the system from an adjudication-centred model — in which justice is equated with the opportunity for court determination — to a pluralist model in which access to justice encompasses access to appropriate dispute resolution processes, with adjudication as a preserved but non-default guarantee. This reconception is not merely procedural; it is normative. It redefines the obligation of the civil justice system as the provision of proportionate, effective resolution rather than universal adjudication.
This reconception is defensible in principle, particularly given the practical failure of the adjudication-centred model to deliver accessible justice following the LASPO 2012 legal aid cuts and persistent court under-resourcing. However, its legitimacy depends on safeguards that the current framework only partly provides. The risks of power imbalance exploitation, practical compulsion to settle, loss of the public norm-development function of adjudication and inadequate regulation of mediation quality are real and insufficiently addressed. The strongest conclusion is therefore a qualified one: mandatory mediation has changed the meaning of access to justice in a way that is potentially progressive, but that change will only be legitimate if the institutional framework evolves to ensure that the pluralist model does not become a mechanism for denying, rather than facilitating, justice.
References
- Amnesty International (2016) Cuts that Hurt: The Impact of Legal Aid Cuts in England on Access to Justice. London: Amnesty International UK.
- Andrews, N. (2019) Andrews on Civil Processes: Court Proceedings, Arbitration, Mediation. 2nd edn. Cambridge: Intersentia.
- Civil Justice Council (2021) Compulsory ADR. Report of the Civil Justice Council ADR Working Group.
- Ferraris, V. (2017) ‘Mandatory mediation in Italy: an evaluation five years after its introduction’, International Journal of Law in Context, 13(3), pp. 301–317.
- Genn, H. (2010) Judging Civil Justice. Cambridge: Cambridge University Press.
- Higgins, A. (2021) ‘The case for compulsory ADR’, Civil Justice Quarterly, 40(2), pp. 148–171.
- Mulcahy, L. (2013) ‘The collective interest in private dispute resolution’, Oxford Journal of Legal Studies, 33(1), pp. 59–80.
- Sourdin, T. (2016) Alternative Dispute Resolution. 5th edn. Sydney: Thomson Reuters.
- Woolf, Lord (1995) Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales. London: HMSO.
- Woolf, Lord (1996) Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. London: HMSO.
Cases
- Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 (HL).
- Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.
- Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576.
- Momčilović v Croatia (Application no. 11239/11) (ECtHR, 26 March 2015).
- PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288.
- R (UNISON) v Lord Chancellor [2017] UKSC 51.
Legislation
- Civil Procedure Rules 1998, SI 1998/3132.
- Human Rights Act 1998.
- Legal Aid, Sentencing and Punishment of Offenders Act 2012.
- European Convention on Human Rights, Article 6(1).
