By Matthew Pascall, Legal Director – Head of Commercial
With the Arbitration Act receiving Royal Assent on 24th February and growing judicial momentum behind mediation – including the Charles Elphicke v Times Media Ltd ruling, commercial litigation solicitors will need to consider how these changes could affect both their working practices and clients. In this article, we take a look at some of the topical issues impacting commercial dispute resolution.
There are a number of factors to consider here – a decline in Commercial Court claims, uncertainty surrounding third-party funding following the PACCAR ruling, and increased judicial and legislative support for alternative dispute resolution (ADR) such as arbitration and mediation. Recent court decisions are also reinforcing ADR’s role – not just as a voluntary option, but in some cases, as a judicially mandated step.
While these changes may not amount to a seismic shift, they are significant enough to warrant close attention.
The Elphicke Ruling: Courts Mandating ADR for Costs Disputes
The Charles Elphicke v Times Media Ltd case has further highlighted the courts’ willingness to impose ADR in litigation. In what can be seen as a landmark decision, the court ordered the parties to engage in ADR to resolve their dispute over legal costs. This ruling underscores a growing judicial trend: ADR is no longer merely an option – it can, in some circumstances, be a requirement.
For commercial litigation solicitors, this ruling presents several key considerations:
- ADR for costs disputes – The Elphicke decision suggests that ADR mechanisms, including mediation, may increasingly be used for disputes over costs. Even after a case has concluded, parties may be compelled to mediate rather than litigate over costs recovery.
- Judicial encouragement of ADR at all stages – The decision aligns with broader judicial efforts to embed ADR into the litigation process. Courts now have greater discretion to order ADR, reinforcing the idea that litigation should be a last resort.
- Cost sanctions for refusal to mediate – Following Elphicke, parties who unreasonably refuse mediation in costs disputes could face adverse costs orders. This mirrors previous decisions penalizing parties for rejecting ADR in substantive claims.
Arbitration reform in 2025
In response to these broader changes, arbitration in England and Wales is also evolving. The Arbitration Act 2025 aims to modernise the framework established by the Arbitration Act 1996, improve efficiency and reinforce London’s reputation as a leading arbitration hub. Key provisions within the act include:
- Streamlining procedures to reduce delays and ensure arbitrations remain cost-effective.
- Clarifying the role of the courts in supporting arbitration without unnecessary interference.
- Strengthening the enforcement of arbitral awards, ensuring decisions are respected both domestically and internationally.
For commercial litigation practitioners, these changes will likely make arbitration an even more attractive option for clients seeking swift and reliable dispute resolution. The reforms could also encourage greater adoption of arbitration clauses in commercial contracts, reducing the number of cases heading to court.
The increasing role of mediation
Mediation has long been seen as a voluntary alternative to litigation, but recent judicial comments suggest a stronger push towards its use. The courts are becoming increasingly supportive of mediation, with several decisions indicating that parties may face costs consequences for unreasonably refusing to engage in the process.
The Lady Chief Justice has suggested the creation of a Mediation Council, which would oversee standards and encourage wider adoption of mediation across civil and commercial cases. Such a body could bring greater structure and consistency to mediation in England and Wales, aligning it with international best practices.
While mediation remains distinct from arbitration, both processes share the advantage of providing parties with greater autonomy and flexibility compared to court proceedings. For solicitors, this means advising clients on the full range of dispute resolution options, rather than ‘defaulting’ to litigation.
What does this mean for commercial litigation solicitors?
As ADR’s profile rises, commercial litigators will need to be prepared for this changing environment. Some key considerations to think about include:
- Advising clients on ADR clauses – reviewing contracts to ensure dispute resolution clauses reflect the best strategic options for each case.
- Keeping up to date with arbitration reforms – understanding the implications of the Arbitration Act 2025 will be very important.
- Engaging with mediation developments – keeping up to date with judicial guidance, including potential regulatory changes..
- Strengthening relationships with ADR professionals – collaborating with experienced arbitrators and mediators can enhance your dispute resolution strategies.
The Temple Perspective
While litigation remains an essential tool, arbitration and mediation are becoming increasingly attractive options in an uncertain economic and legislative climate.
Here at Temple we recognise that ADR can play an increasingly important role in the commercial disputes. The Elphicke ruling demonstrates that ADR’s role is expanding – not just in resolving disputes, but also in determining costs. It is not just an alternative but, in some cases, a judicially preferred or mandated step.
We are committed to supporting initiatives that promote the earlier and fair resolution of disputes, helping to balance risk while maintaining a focus on achieving the best outcomes for your clients.
Our ATE insurance policies support claimants in arbitration and mediation, covering adverse costs and disbursements should the case not succeed. This enables parties to explore settlement opportunities with confidence, ensuring that access to justice is not compromised by cost concerns.
For more information or to discuss a commercial dispute case you are considering ADR for, please contact Matthew Pascall on 01483 577877 or via email to
Matthew Pascall
Legal Director – Head of Commercial
Matthew Pascall
Matthew was called to the Bar in 1984 and joined Guildford Chambers two years later. Spending more than 30 years in practice there, he was listed as a Legal 500 Tier One barrister.
He joined the commercial team at Temple Legal Protection as Senior Underwriting Manager in 2017.
Matthew was appointed to Temple’s Board in December 2022 as Legal Director and Head of Commercial.
His knowledge of the commercial legal sector and litigation practice is invaluable to the business and our clients, providing specialist experience to lead the commercial litigation insurance team.
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