Should mediation be compulsory?

Should mediation be compulsory? That is the question to be addressed by the Court of Appeal on 28th June 2023 in the case of Churchill v Merthyr Tydfill County Borough Council (CA -2022-001778), a leapfrogged appeal from a DDJ in Cardiff County Court. Permission to appeal was granted by Andrews LJ who said that the case “raises an extremely important issue relating to access to justice.” 

The case concerns a complaint about nuisance caused by Japanese Knotweed. Merthyr Tydfill which is currently defending a number of such claims which it says is placing a strain on its limited financial resources argued before the DDJ that the claimant should have exhausted their alternative dispute resolution options, including an internal complaints process – before being permitted to engage in litigation. 

Sir Geoffrey Vos, the Master of the Rolls, has previously made clear the direction of travel regarding ADR saying that “ADR should no longer be viewed as ‘alternative’ but as an integral part of the dispute resolution process; that process should focus on resolution rather than dispute.” 

In giving permission Andrews LJ described the issue as concerning “…whether a claimant who unreasonably refuses to engage in ADR in breach of the requirements of the Practice Direction (Pre-Action Conduct and Protocols) can be precluded from bringing or advancing a claim in court.” 

Paragraph 8 of the PD (PACP) states that: 

“Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.” 

Paragraph 15 of the PD states that: 

“Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that: 

1. the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction; 

2. the proceedings are stayed while particular steps are taken to comply with the pre-action protocol of this Practice Direction. 

3. sanctions are to be applied.” 

The Practice Direction was introduced in 2015 and thus post-dates the decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, now nearly 20 years old and still the leading case on the questions of what sanctions should apply if a party unreasonably refuses to engage in ADR. 

The question of whether it should be compulsory to mediate – in other words, should a claim be stayed if the claimant refuses to participate in ADR – is a thorny one of both principle and practice. 

Both the Law Society and the Bar Council are making submissions at the hearing. I know that the Bar Council at least has pointed out that Article 6 is engaged. Article 6 provides that: 

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” 

It is suggested that if compulsory ADR forms an integral part of the litigation process and is no longer optional that might be a breach of Article 6. No doubt that is a point the Court of Appeal will have well in mind. 

What interests me more, as a practising mediator, is the question of whether compulsory mediation is a good idea in practice. In almost every mediation at some point mediators hear the complaint (from one or both parties) that the other side ‘is not taking this seriously’ or ‘is not here to negotiate’. That, in my experience, is very rarely true – even if parties are somewhat half-hearted at the beginning of the day, the process takes over and creates its own momentum. 

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? 

In my experience solicitors representing parties have a good sense of when it is appropriate to mediate and often – perhaps counter-intuitively – before proceedings have commenced is too early. My own experience is that the point between disclosure and exchange of witness statements is a good point to mediate since parties have all the relevant information to make an assessment of the merits of their case, but positions have not necessarily hardened.

Whatever the outcome of the Churchill decision mediation will remain an important part of the landscape for property litigators. For those of us who work in the property field, the particular advantage of mediation is that compromise agreements about respective rights, obligations and interests can take into factors which are not strictly relevant to the disposal of a case at court and achieve outcomes that a court cannot give. And the fact that 80%-90% of mediations settle on the day or in the days afterwards suggest that it is a good investment of time and energy. Whether compulsory or not I hope that mediation will be considered and tried in all property cases. 

Article by John de Waal KC