How hybrid ADR can reinvent arbitration

1. Introduction

The inaugural London Arbitration Week 2025 took place 1st to 5th December 2025. On 2nd December I chaired a panel session hosted by law firm Mills & Reeve titled “How hybrid ADR can reinvent arbitration”. The panel comprised Martino Giaquinto, a partner in the Construction and Engineering practice at Mills & Reeve, Paul Sills (counsel, arbitrator and mediator) and Philip Jeffcock, Managing Partner at Cew Capital LLP.

The session prompted a lively discussion amongst the panel and with attendees. The purpose of this note is to summarise some of the key themes which came from that conversation.

2. Arbitration is not delivering

The starting hypothesis for the session was that arbitration has lost its way; in many cases it has forgotten what it was intended to be and what it was intended to deliver. Instead of being an agile means of achieving quicker, more efficient, and less costly dispute resolution, it has simply become litigation by another name. It is just as slow, process heavy and expensive (if not more).

The 2025 International Arbitration Survey (click here) is a very helpful analysis of current arbitration trends and opportunities. However it is not a barometer of client sentiment towards arbitration. Anecdotal evidence is that many clients are not happy with arbitration, and this was reinforced at our session. It can be too rigid, slow, and costly and often clients feel completely dissociated from the process.

3. A change of mindset is required

The tools and techniques which, if deployed, would mean arbitration could become again the agile means of efficiently resolving disputes, are well known and available. They fall under the general heading of Alternative Dispute Resolution, and include early facilitation, early neutral evaluation, mediation, and expert determination, among others.

Coupled with a more inquisitorial approach, in which arbitrators play a more creative and dynamic role in helping the parties find the best and most efficient way of resolving their dispute, as opposed to processing the case in accordance with standard arbitration norms, these approaches create a powerful catalyst for getting disputes resolved.

There is little evidence that such a mindset is being adopted and deployed. The 2025 International Arbitration Survey suggests the introduction of expedited arbitration procedures in suitable cases has been well received. However sentiment among practitioners towards ADR and mediation is lukewarm at best; only 11% of respondents considered the inclusion of mandatory mediation in timetables would improve efficiency; some consider ADR a waste of time. At our session one attendee asked whether mediation works; all the data suggests it does.

4. The problem does not lie primarily with arbitration rules and associated process

The requirement for creativity and flexibility in arbitration is supported by the rules issued by the many arbitration courts/organisations and by associated legislation. s.33(1)(b) of the Arbitration Act 1996 states “the tribunal shall….adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined”.

Article 22 of the ICC rules stipulates “1)The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute”…. and…. “2)In order to ensure effective case management, after consulting the parties, the arbitral tribunal shall adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties. Such measures may include one or more of the case management techniques described in Appendix IV” which includes the use of ADR.

In the UK the Arbitration Act 1996 was enacted at the same time as the rules regarding the conduct of civil litigation were being overhauled. The Woolf reforms which culminated in the new Civil Procedure Rules adopted in 1998, contained similar exhortations to the courts and to litigants and their advisers, in the form of the “overriding objective”, to think creatively about resolving disputes efficiently, to secure better, quicker and cheaper outcomes, principally through the use of alternative dispute mechanisms (in particular, mediation).

As a result of the case of Churchill -v- Merthyr Tydfill Borough Council EWCA Civ 1416 decided in December 2023, mediation is now all but compulsory in almost all UK civil litigation cases. Nowadays a case does not reach a CCMC without the parties being required to mediate.

The same imperative is not applied in the arbitration arena. Whereas the Churchill case has served as a flex point in demonstrating (after significant delay) the courts are serious about requiring litigants to use ADR tools and techniques, there has been no similar imperative issued by the key arbitration courts and institutions. Most have mediation rules which sit beside their arbitration rules, but they are treated almost as mutually exclusive alternatives, rather than as a toolset which can be applied flexibly to secure a resolution.

But the tools are there and are known. All arbitrators and advisers are familiar with the ADR techniques which are available; the issue is they are not being used.

5. The issue is primarily behavioural

The 2025 International Arbitration Survey cites a number of factors which respondents identified as creating inefficiencies in arbitration. The top three are (1) adversarial approaches on the part of Counsel (24%); (2) lack of proactive case management by arbitrators (23%); and (3) over lawyering (22%). The second of those is consistent with the view that arbitrators can be insufficiently inquisitorial in their approach.

A key potential barrier raised at the session was what one attendee described as “due process paranoia”, in other words the reluctance of arbitrators to deny the process demands of litigators for fear of being challenged. These concerns are real, but should be manageable. Successful creative dispute resolution requires a strength of personality and character which enables the arbitrator or mediator to influence and persuade the litigants and their advisers, and bring them along with the any alternative solutions being proposed. If that approach is compelling and agreed, the risk of challenge on due process grounds is reduced.

In addition there is a systemic barrier associated with financial incentives. Arbitration cases generate significant fees for law firms, arbitrators and for arbitration courts/institutions. And the fee models are, in almost all cases, time based; the longer the case goes on, the more complex it becomes from a process point of view, the more lucrative it is for those involved.

This is not to impugn the good faith and professionalism of those involved; it is a fact of life. In terms of behavioural economics, these financial dynamics militate against better, quicker, cheaper outcomes.

6. How do we bring about change?

These behaviours have been embedded in the arbitration community for decades. It is unlikely therefore that this cohort will change spontaneously or quickly.

One lesson can be drawn from the approach taken by the courts in the UK to civil litigation. The Churchill case has created a major shift in the civil litigation mindset and culture; ADR is now at the centre of most cases, because the courts insist on it being there.

On that basis there is an opportunity for the arbitration courts/institutions to revisit their rules and amend them to integrate into them ADR tools and techniques, and to require arbitrators and litigants to use them, and in doing so, differentiate themselves in the market place.

However the single most important intervention would be if the client cohort stepped in, first to express their discontent but also to convey their support for a more agile and commercial approach. They pay the bills, and if they move, the market will have to move with them.