ADR bodies unite to overturn judgment that parties cannot be forced to mediate

Three bodies that represent commercial mediators have combined to try to overturn a 2004 judgment that said claimants cannot be compelled to go to mediation.

The Civil Mediation Council (CMC), the Chartered Institute of Arbitrators (Ciarb) and the Centre for Effective Dispute Resolution (CEDR) have intervened in Court of Appeal case of Churchill v Merthyr Tydfil.

Although this case arises from a local Japanese knotweed claim, the three organisations see it as one that might lead to Halsey v Milton Keynes General NHS Trust [2004] being overturned.

Judgment given in the Halsey case decided it was a breach of article 6 of the European Convention on Human Rights - the right to a fair trial - to compel parties to mediate.

A joint statement by the three bodies said: “This decision is considered by many to be wrong because even if the parties are automatically referred to mediation, they are not compelled to settle. If settlement is not reached voluntarily, parties retain access to the courts.

“Although subsequent case law on mediation in the last two decades has sought to moderate the Halsey decision, and despite public comments from some judges that they regret the impact of this case on mediation, it still remains legal precedent.”

They noted Civil Justice Council’s 2021 report Compulsory ADR, had concluded in favour of mediation and that compulsion to use alternative dispute resolution would be lawful and should be encouraged.

CMC chair Rebecca Clark said: “Mediation is a consensual process which empowers people to actively manage and resolve disputes and conflict. It is important that the Court of Appeal is given evidence as to its efficacy and increasing popularity: mediation saves time, money and court resources.”

Catherine Dixon, director general of Ciarb, added: “Halsey has proved hugely problematic for the wider adoption of mediation. It is generally considered to be bad law and this case offers the Court of Appeal the opportunity to clarify that automatically referring parties to mediation does not breach their human rights.”

CEDR chief executive James South called on the Court of Appeal “to adopt a more permissive approach, and to allow judges, in appropriate cases, to order parties to attend mediation”.

The case has drawn comments from a number of lawyers in the field.

JMW partner David Smith said: “The argument is over whether a potential claimant is required to use internal complaints processes before they start using pre-action protocols and commencing court proceedings.

“This is something that a number of local authorities have recently argued in a range of cases involving claims against them.”

He said community secretary Michael Gove “has given some support to this view by suggesting that tenants should use internal processes rather than commencing disrepair claims.

“This is all ostensibly to save costs in dealing with low value claims but it has also been suggested that it is more about saving costs by making it harder for people to make claims and to settle them for lower amounts than they would if they got legal advice and went to court.”

Mr Smith said there were questions over whether a local authority internal complaints process counts as alternative dispute resolution as “it is not what most people would think of as being ADR as it does not involve independent attempts to resolve a dispute, but ADR is a broad church and covers a range of different means of resolving problems”.

John de Waal KC, of Gatehouse Chambers, said there was ”the question of whether compulsory mediation is a good idea in practice”.

Most mediations saw allegations made by one party that the other did not take the proceedings seriously “but even if parties are somewhat half-hearted at the beginning of the day, the process takes over and creates its own momentum”.

Mr de Waal added: “However if it were compulsory to mediate, given that mediation privilege attaches, it would be impossible to insist that a party attend in good faith and impossible to police such an obligation. That is a problem.

“More significantly, if mediation were to become a compulsory part of the litigation process, at what point should the court say it should happen? Before proceedings are commenced? At an interim stage? Before a trial is listed?”

Kennedys Law associate Steven Elliott said: “The forthcoming appeal in the case of Churchill raises interesting issues in respect of access to justice, the steps to be taken before court proceedings are issued (for example, exhausting internal complaints procedures and adhering to the relevant pre-action protocol), as well as the role of ADR in the civil justice system generally, which could impact public service organisations involved in civil litigation.”

Mark Smulian