CAN THE COURTS FORCE MEDIATION ON PARTIES IN DISPUTE?
Over the years, litigation has become more complex, more protracted and often more expensive. An action started in the High Court can then progress to the Court of Appeal and sometimes even on to the Supreme Court. This can add years and huge costs to the case and make litigation prohibitive for all but the wealthy.
In recent years, non-court options have become more popular and terms like Mediation and Alternative Dispute Resolution (ADR) are well known to the public. Reference to mediation has moved from the Family Law Courts to all other courts who entertain disputes. You read in the papers how a judge might gently advise the parties to think about mediation as an alternative, but the question is often asked: can a judge effectively compel parties to enter into mediation?
A recent superior court decision in the UK, which is more than likely to be followed here, suggests that a judge can be equally forceful in pushing the parties towards settlement of their dispute by mediation.
On 29 November 2023, the Court of Appeal in London issued its judgement on whether litigants can, in effect, be compelled to use other alternatives to the court process such as mediation.
In this case, the plaintiff sued his local council alleging it had negligently allowed Japanese Knotweed on their adjacent site to enter into and infest his garden. The council asked him to suspend his case while their internal complaints department investigate and try to resolve the matter.
The court was asked whether parties in dispute could be compelled to use other non-court-based resolution methods, such as using the council’s housing dispute scheme.
The trial judge, in the High Court, felt his hands were tied by an earlier 2004 decision where the presiding judge, Lord Dyson suggested that compelling parties to enter into mediation would be a denial of their right to access the courts.
However, in the 2023 Court of Appeal case, the judge decided to depart from Lord Dyson’s comments on the grounds the judge’s words did not inform his decision in that case, were spoken as an aside and should have no bearing on future court decisions.
The Court of Appeal then adopted a new stance where, if appropriate, the court may, using its discretion, require parties to use what it called “non-court-based dispute resolution”. The judge in the case stated quite clearly that “experience has shown that it is extremely beneficial for the parties to disputes to be able to settle their differences cheaply and quickly even with initially unwilling parties, mediation can often be successful.”
This judgment would appear to open the door now for courts to actually require or compel parties, who may initially have been unwilling, to engage instead in another form of dispute resolution. The judge did, however, make clear that the parties could always proceed to litigate their dispute if the mediation process proved unsuccessful.
In a rather unusual move, both the Law Society and Bar Council of England and Wales were represented at the hearing and so the final decision on the issue is likely to determine the law both in the UK and Ireland in the years ahead.
The courts are now more likely to push parties to mediation while respecting their right to use the courts if they prefer.
The old way of courts encouraging mediation is likely to become one of compelling parties to do so. Expect to see the mediation and ADR routes become even busier in the future. This is even more so with the introduction of the Mediation Act in Ireland.
James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.
