A decade ago, I recall successfully persuading a District Judge in the County Court for an order compelling a difficult and reluctant opponent to attend mediation. This proved to be the exception rather than the rule, as it hasn’t happened to me since and the courts’ general attitude to mediation has been (a) to encourage it; and (b) punish parties who unreasonably refuse mediation with cost sanctions, but to fall short of compelling a reluctant party to mediate. This attitude has generally been influenced by the Court of Appeal’s comments in 2004 in Halsey v Milton Keynes General NHS Trust, that “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”
Change is in the air. The alternative dispute resolution (ADR) landscape has already shifted earlier this year with the Ministry of Justice’s proposal of a planned introduction in 2024 of compulsory mediation for Small Claims Court cases (i.e., the value of the sum in dispute is under £10,000). Then a much-anticipated case has just come before the Court of Appeal that could widen the scope of compulsory mediation potentially to all claims, not just the small ones.
In his judgment on 29 November 2023, Sir Geoffrey Vos (Master of the Rolls) confirmed that the comments in the Halsey judgment were obiter and non-binding. He went on to say that the court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process (in other words, ADR, which would include mediation).
Sir Geoffrey Vos declined to give guidelines as to how the court should decide whether to order compelling the parties to engage in ADR. Guidelines would most likely act as a straitjacket for judges, whom Sir Vos describes as “well qualified to decide whether a particular process is or is not likely or appropriate for the purpose of achieving the important objective of bringing about a fair, speedy and cost-effective solution to the dispute and the proceedings, in accordance with the overriding objective.”
Instead, Sir Vos stated that the court should only order compelling the parties to engage in ADR “provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.” The court will need to consider the merits of the proposed ADR process for each case. It is interesting but not particularly surprising that Sir Vos decided that in Churchill no order should be made, because the form of ADR sought, being the Council’s own internal complaints procedure, was unsuitable. If the ADR procedure being considered was mediation, I think the outcome would be different.
It remains to be seen whether this is the beginning of an era of compulsory mediation (or other form of ADR that may be appropriate) for most cases. I think it may well be. Cases where mediation is not proportionate or does not represent a genuine chance of settling a dispute fairly, quickly and cheaply when compared to the costs and resources required for a full trial in court, are likely to be few and far between.
What about the difficult and reluctant party who steadfastly refuses to mediate? As Sir Vos pointed out and I concur from experience: “Even with initially unwilling parties, mediation can often be successful.”
It seems as though the courts now have permission to push more cases to mediation. This may be music to the ears of judges exasperated by the backlog of cases and inefficiencies of the court system. Perhaps the District Judge who granted my request for an order compelling mediation all those years ago was just ahead of his time.
For more information and to find out how we can help you, please contact us on 0345 646 0406 or fill in our online enquiry form for more information and a member of our Team will be in touch.