Is Mandatory mediation on the cards?
Mediation is not new. In many societies people with grievances or disputes turn to elders or wise colleagues to resolve disputes. For me mediation started 30 years ago. The Law Society invited CEDR to give a talk on something which was then “new-fangled”. Having conducted litigation in the Courts I was weary of the vagaries and uncertainties of litigation and the frustration of complying with the Court processes. It seemed to me then, that there was a superior way to dealing with the disputes of my clients. I was immediately convinced that mediation was that superior way.
In or around 1993 mediation had not really taken off anywhere in the UK but it was reasonably well established in Australia and the US. In 1995 I attended Mediation and Conflict Resolution training in Fordham University, New York and have continued with my interest ever since.
In December 2001 a claim was brought by a Mr Frank Cowl who was seeking to Judicially Review a decision of Plymouth City Council to close the nursing home in which Mr Cowl was a resident.[i] There had been no effort made to resolve the dispute by using mediation and the Court observed
“even in disputes between public authorities and the members of the public for whom they are responsible insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. Both sides must by now be acutely conscious of the contribution ADR can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress”. The Court went onto say that “today sufficient should be known about Alternative Dispute Resolution to make the failure to adopt it in particular were public money is involved quite indefensible”.
In April 2002 the case of Dunnett v Railtrack[ii] was decided. Mrs Dunnett’s horses had strayed onto an inadequately fenced section of railway line and were killed. Mrs Dunnett sued Railtrack. The company had a good legal defence and won their case. They did not, as would usually be the case, recover costs. The Court had suggested using ADR but Railtrack did not agree.
The Court said,
“it is hoped that any publicity given to this part of the Judgement will draw attention of lawyers to the possibility that if they turned down the chance of ADR they may have to face uncomfortable cost consequences”.
In a third case around the same time a Solicitor, Mr Hurst, embarked on (unwise) litigation against his legal representatives in an action against his former Partners. There were many stages and Appeals.[iii] Mr Hurst’s Solicitor Mr Leeming was adamant that his advice and representation of Mr Hurst was not in any way negligent as Mr Hurst claimed. He refused to mediate and the Court said
“ADR is at the heart of today’s civil justice system and if any unjustified failure to give proper attention to the opportunities afforded by mediation there must be as anticipated a real possibility that adverse consequences may be attracted”.
These three cases in 2002 and 2003 referenced how ADR was part of the Civil Justice system and considered how a failure to use it might attract adverse costs consequences. Not everyone at that time was content. In the case of Corenso (UK) Ltd. -v- The Burnden Group Plc[iv] the Court observed, in very different language to the three cases mentioned above, that
“it is possible that a failure to engage in the mediation process may have adverse cost consequences for a successful party. It is not by any means inevitable”.
This tension between those advocating mediation and those sceptical were resolved in the seminal case of Halsey. This was decided in 2004. Lord Dyson gave the leading Judgement. In this case Mrs Halsey claimed against the Health Trust, alleging damages arising from the death of her husband which she alleged had occurred as a result of a negligent medical treatment.
Her representatives, no doubt encouraged by such cases as Dunnett and Cowl, repeatedly requested that the Defendant Heath Trust engage in mediation. They refused. The Court of Appeal decided that an unreasonable refusal to mediate would result in costs sanctions and went on to elaborate about what might amount to an unreasonable refusal. These so-called “Halsey criteria” include; the nature of the dispute, the cost of the mediation, delays in organising a mediation, the strength of the merits of the case and whether there was any reasonable prospect of success in a mediation. Most importantly the Court concluded that its role was to encourage parties to mediate and not to compel, although it acknowledged that encouragement could be robust. The Court was concerned that forcing people to mediate interfered with their right to a trial.
Although not everyone agreed with Halsey it was regularly followed, and parties then became used to the receipt of invitations to mediate, and advisors became used to advising clients that an unreasonable refusal might be adverse to them in recovering costs should they succeed.
Ten years after the decision in Halsey, Lord Dyson was invited to attend the first Commonwealth Mediation Conference in Belfast. In his significant address[v] he maintained that although Halsey was controversial it was still correct. Lord Dyson believed that there were three main propositions to be derived from Halsey. First that mediation is important and should be used in many cases but it is not a universal panacea; secondly parties should not be compelled to mediate; and thirdly that adverse Costs Orders are an appropriate means of encouraging parties to use mediation. His emphasis on parties being encouraged but not compelled was a view which he held very firmly. In his address he said
“should parties ever be compelled to mediate even if they really do not even want to do so? On this point I remain of the same view as I expressed in Halsey; that truly unwilling parties should never be compelled to mediate. Cajole yes, encourage yes, but compel no.”
This view, that compelling people to mediate was inappropriate and may even deprive people of their rights to a trial, has been the prevailing view ever since Halsey was decided in 2004. While on the 10th anniversary of the Halsey decision, in the first Commonwealth Mediation Conference, Lord Dyson conceded that mediation may not after all offend against a party’s right to a trial, (influenced no doubt by the Rosalba Alassini case in Europe[vi]), he remained robustly of the view that mediation was to be encouraged but not compelled. Indeed, he said,
“It is not the role of the law to force compromise upon people who do not want it by forcing them to engage in a mediation process. Parties who have a strong case and who seek vindication rather than compromise should not be denied their day in court.”
In June 2021 the Civil Justice Council, having been asked by the Master of the Rolls to consider the position, published a significant report[vii] which concluded that compulsory mediation was not unlawful or inappropriate. They effectively considered that Halsey in this regard was incorrect. Sir Geffrey Vos, the Master of the Rolls, in May 2022 in Belfast, in the second Commonwealth Mediation Conference, in his keynote speech spoke of the need to integrate different dispute resolution approaches in the civil justice system. He thought that mediation, arbitration and litigation all had a part to place in a Civil Justice system. The emphasis was not on the process but should be on the resolution of the dispute in the most appropriate manner.
It seemed to me while listening to the Master of the Rolls that mediation had come a long way since the mid 1990’s when my interest first started. The second most senior Judge in England and Wales was acknowledging the integral part mediation played in Civil Justice and how mediation was normalised rather than being “new-fangled” as it had been 30 years earlier.
What is particularly interesting is how the debate about compulsory mediation has progressed. Two significant matters have occurred recently.
The first is that in England and Wales small claims under £10,000.00 are to be the subject of compulsory mediation.[viii] This echoes the Gillen Civil Justice Review in Northern Ireland[ix]
which also recommended that mediation in Small Claims Court proceedings should be made mandatory.
However, potentially more significant than any statutory mandating of mediation for lower value cases is the case of Churchill -v- Merthyr Tydfil County Borough Council[x] (Churchill). It is interesting how some important cases involve mundane factual circumstances. In this case Mr Churchill sued his Council because his property had been invaded by Japanese Knotweed the source of which was adjoining Council lands. The Council maintained that litigation was disproportionately expensive, and that Mr Churchill should have been required to avail of the Council’s dispute resolution process.
The issue rapidly became of interest to mediation organisations and practitioners and at the end of June 2023 permissions were granted for interveners in this dispute to be able to address the Court of Appeal which will consider the matter in the coming weeks. The case is being heralded as a test of the Halsey observation that mediation should be encouraged but not compelled. It is in fact anticipated that the Court might decide that the Halsey era has come to an end. The UK’s squeamishness about making mediation mandatory may be ended.
The Churchill case could indeed become significant for the evolution of Civil Justice in the UK and how disputes are approached.
30 years on from my initial discussion in Law Society House in Belfast, civil justice and its approach to disputes has indeed come a long way. This has implications for the training of lawyers, and the education of current practitioners to be aware of the opportunities for mediation. The increasing likelihood of an obligation to mediate is significant. Practitioners need to be equipped to advise clients about mediation.
The Churchill case in the Court of Appeal will be observed with great interest.
Brian Speers, Solicitor, Mediator
CMG Cunningham Dickey, Belfast
- [i] R (Cowl and Others) v Plymouth City Council  EWCA Civ 1935
Dunnett v Railtrack plc EWCA Civ 303, EWCA Civ 302
Hurst v Leeming (2002) EWCH 1051
Corenso (UK) Limited v The Burnden Group Plc  EWHC 1805
- [v] Halsey 10 years on – the decision revisited Lord Dyson MR Commonwealth Mediation Conference, Belfast 9 May 2014
Rosalba Alassini and Others v. Telecom Italia SpA and Others  EUECJ C-320/08
- [vii] Civil Justice Council Compulsory ADT June 2021
Gov.Uk Press release New justice reforms to free up vital court capacity 25th July 2023
- [ix] Review of Civil and Family Justice in Northern Ireland September 2017
Churchill v Merthyr Tydfil County Borough Council CA-2022-001778