THE AUTHORS:
Will Hooker, Partner at Alston & Bird
Sophia Bouygues, Senior Associate at Alston & Bird
In Churchill v. Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 (“Churchill”) the English Court of Appeal – overturning Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576 – decided that the court could lawfully order the parties to engage in a non-court-based dispute resolution process, including mediation, provided that the order made did not impair the very essence of the claimant’s right to proceed to a judicial hearing, and was proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
The case has been widely described as a landmark moment for alternative dispute resolution in England and Wales. It has also sparked some debate as to whether the court’s power to order parties to mediate translates into a tribunal power to do the same in English-seated arbitrations.
Current Interplay Between Mediation and Arbitration
Among arbitration circles, the question of whether arbitrators should be doing more to foster settlement is often brought up. Is the arbitrator’s role simply to manage the proceeding and make a final decision, or should they undertake a more active role as a settlement facilitator? The answers to this question vary and can be culture-dependent.
In recent years, there has been a noticeable movement to greater acceptance of a more active role for arbitrators. The “arbitrator as facilitator” profile seems attractive, not least because arbitration can be as costly as litigation. The IMI Mixed Mode Taskforce reported that in response to the question “Do you think an arbitrator has a role in fostering settlement”, 78.38% of participants answered positively (See, IMI Mixed Mode Task Force, Working Group 4 – Arbitrators and Settlement, 16 November 2021). Similarly, in response to an ICC survey, almost 70% of participants considered that arbitrators should inform parties about ADR options at the first case management conference (See, ICC Commission Report, Facilitating Settlement in International Arbitration, 2023). However, there are no uniform views. There are certainly those who consider that an arbitrator’s role is merely to decide the dispute and nothing more. The logic for this view is simple: the parties decided to submit their dispute to arbitration, not another form of ADR.
As to the institutional rules, they vary in their approach (See, IMI Working Group 4 Report, 16 November 2021). For example, the LCIA Arbitration Rules 2020 and SCC Arbitration Rules 2023 do not contain express provisions as to settlement-promotion. On the other hand, the SIAC Arbitration Rules 2025 empower the tribunal to consult with the parties on the potential for settlement at the first case management conference (See, Rule 32.4). Similarly, the Swiss Rules of International Arbitration 2021 provide that, with the agreement of the parties, the tribunal may take steps to facilitate settlement (Article 19(5)). The topic is a developing one, leaning towards settlement promotion. The ICC, in its most recent Note to Parties and Arbitral Tribunals on the Conduct of ICC Arbitration dated 1 June 2026, is vocal about tribunals using the encouragement of settlement as a case management technique. The LCIA’s ongoing consultation on the next edition of the LCIA Arbitration Rules includes the subject of integrating ADR options, including settlement windows and med-arb/arb-med-arb, together with referral mechanisms (See, LCIA Consultation on the next edition of the LCIA Arbitration Rules).
Ultimately, whether or not a particular set of arbitrators would consider it appropriate to take responsibility for facilitating settlement, it remains the case that where parties actually engage in mediation within arbitration proceedings, such process would take place only upon party agreement.
Does Churchill Empower Tribunals to Compel Parties to Mediate?
The potential impact of Churchill on the powers of a tribunal in an English-seated arbitration has not yet been addressed in reported arbitral decisions or in English court decisions relating to arbitration. Its effect (if any) remains to be seen. The remainder of this article considers the two sides of the argument: does Churchill mean that arbitrators now have the power to compel parties to mediate or not?
One View: Churchill Is Irrelevant to the Issue of Tribunal Powers
One might argue – on fairly strong grounds – that Churchill has no impact on the issue of tribunal powers.
Churchill is a decision about the English court’s case management powers under the Civil Procedure Rules. It was not concerned with arbitral tribunals’ powers with respect to facilitating settlement; nor did it address the issue obiter.
To understand the distinction properly, one must go back to basics. Arbitration as a process is strongly defined by the principle of party autonomy. The parties are in arbitration proceedings because they agreed to do so in the first place. Tribunal powers are equally dictated by that party agreement. The powers of the tribunal are found in the parties’ agreement, the applicable institutional rules, and the law of the seat, i.e., the English Arbitration Act 1996 (either in its original version or as amended by the Arbitration Act 2025) (the “Arbitration Act”).
On this basis, it would not appear that the court’s ruling in Churchill automatically transposes to an arbitration setting, because an arbitral tribunal is not exercising the court’s inherent or CPR-based jurisdiction. Compelling parties to engage in mediation would represent a significant interference with party autonomy.
That said, a tribunal may often have enough procedural power to encourage mediation or pause the timetable to allow for ADR. Section 34 of the Arbitration Act gives the tribunal power, subject to the parties’ agreement, to decide “all procedural and evidential matters”, including when and where proceedings are to be held, the language to be used, the form of submissions, type of disclosure, and other procedural issues. Under Section 33, the tribunal must also act fairly and impartially as between the parties, giving each party a reasonable opportunity to put its case and deal with that of its opponent, and must adopt procedures suitable to the circumstances of the particular case, while avoiding unnecessary delay or expense so as to provide a fair means for the resolution of the matters falling to be determined.
Those provisions support robust procedural management, but they do not expressly confer a power to compel a different form of ADR, including mediation. Section 34 is broad, but it is directed at the conduct of the arbitral proceedings. A mediation is a separate, confidential settlement process conducted before a mediator, rather than a usual step in the tribunal’s adjudicative process. While a direction that the parties confer about ADR (without directing them to in fact engage in ADR) probably does fall properly within the scope of the tribunal’s powers, a compulsory mediation order would take things one step further and possibly provide grounds for a challenge. Nor is such power expressly referred to in Section 38, which deals with the tribunal’s general powers. Section 38 similarly starts from party autonomy: the parties are free to agree what powers the tribunal has, and the default powers listed under it do not include an express power to require mediation.
Another View: Churchill Is Relevant to the Issue of Tribunal Powers
Others might argue differently. It might be said, for example, that Section 34 in fact grants the tribunal broad powers over how the arbitration is conducted, and that a proportionate direction requiring mediation can be characterised as a proper procedural step designed to achieve the Arbitration Act’s core objective: fair resolution without unnecessary delay or expense.
This view would likely be based on Section 34(1), which provides that, subject to the parties’ agreement, “it shall be for the tribunal to decide all procedural and evidential matters”. Section 34(2) gives examples of such matters, but the word “include” suggests that the list is not exhaustive.
That argument is reinforced by Section 33. The tribunal must adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for resolving the matters to be determined. If the tribunal considers that mediation is likely to narrow issues, reduce cost, avoid unnecessary evidence, or resolve the dispute altogether, it could argue that a time-limited mediation direction is a procedural mechanism serving the statutory objective of efficient, expeditious, and fair resolution.
Section 1 also supports this purposive construction. Part I of the Arbitration Act is founded on the principle that the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense, and that courts should not intervene except as provided by the Act. A tribunal could say that a controlled ADR step advances that statutory object and reduces the need for court intervention.
On that view, a direction to attend mediation might be characterised not as an adjudication of settlement or order to settle, but rather as a procedural direction or case management step regulating the sequence, pace, and efficient conduct of the arbitration – much like, for example, attending expert meetings in order to narrow the points of agreement and disagreement. It would merely require participation in a process that may narrow or resolve issues, while preserving each party’s right to reject settlement and return to arbitration.
Equally, in case a challenge to the award was to be brought by a disgruntled party on the basis that the tribunal did not have the power to order mediation, the tribunal would likely respond along the same lines: the order would be said to have been simply a step that advanced the objective of efficient, expeditious and fair resolution of the parties’ dispute. Ultimately, if compulsory mediation is not inherently inconsistent with access to adjudication in court proceedings, it should not be inherently inconsistent with access to arbitration, provided the tribunal’s direction is proportionate, does not require settlement, and does not deprive either party of a fair opportunity to present its case.
Conclusion
No reported English arbitration decision or arbitration-related court proceeding has touched upon whether Churchill translates into a tribunal power to compel parties to mediate. It remains an open question.
Depending on the arbitration agreement, applicable rules, and procedural context, a tribunal may have the power to encourage ADR, direct the parties to consider it, or stay the timetable to facilitate it. A coercive order, however, requiring parties to mediate over objection is likely to be approached cautiously. It would not be surprising if many arbitrators felt concerned about purporting to possess such power in the absence of express party agreement. It would not be difficult to envisage that an award imposing sanctions on the basis that a party refused mediation could itself become vulnerable to challenge if viewed as exceeding procedural powers or denying a reasonable opportunity to present its case.
ABOUT THE AUTHORS
Will Hooker is a Partner in Alston & Bird’s International Arbitration and Dispute Resolution Team in London. Will Hooker focuses his practice on complex commercial and investment arbitrations. He regularly represents clients in arbitration matters under the rules of the ICC, LCIA, SIAC, LMAA, ICSID, LAMC, and UNCITRAL, as well as in ad hoc arbitrations. Will’s practice is global in scale, having represented clients on every continent.
Sophia Bouygues is a Senior Associate in Alston & Bird’s International Arbitration and Dispute Resolution Team in London. Sophia Bouygues focuses her practice on complex commercial and investment arbitrations. She has represented clients under the LCIA, ICC, ICSID, and UNCITRAL rules.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
