12 January 2024 by Michelle Footer

The Court adds compulsory mediation to its toolbox

The Court has always encouraged parties to a dispute to engage in Alternative Dispute Resolution (‘ADR’) at an early stage to try to reach a settlement without the need for significant Court involvement. However, following the 2004 case of Halsey v Milton Keynes General NHS Trust, the Court has not had the power to compel parties to mediate.

Mediation is one of the most common forms of ADR and has proven to be highly effective at resolving disputes at an early stage. It is an opportunity for the parties to a dispute to attempt to reach a resolution and it can take place at any stage before or after the issue of proceedings.

Mediations tend to be scheduled for a whole day and can be held in person or remotely. The parties take part in a series of meetings, usually with their legal representatives or experts present. The mediator, who is an impartial person, will facilitate and assist the parties in exploring and finding a solution on which they can all agree. The mediator will not take sides or judge who is right or wrong and they will not give an opinion on this. If a resolution can be reached on the day of mediation, this will then need to be documented and signed by the parties as a Settlement Agreement or a Tomlin Order. Given the success rate of mediations, it is not surprising that the Court are keen to encourage parties explore this option.

The much anticipated decision in the recent Court of Appeal case of Churchill v Merthyr Tydfil County Borough Council found that the Court has additional powers which permits them to order that parties to a dispute engage in a non-court-based dispute resolution process, such as mediation, provided that the power is exercised in such a way that it does not impair a party’s rights to a fair trial under Article 6 of the ECHR. They can also order that a claim be stayed to allow for this to take place or, alternatively, they can order that this take place alongside any existing directions.

The background of the case was that the Claimant commenced a claim against a Council in nuisance in respect of Japanese knotweed which had spread onto his land. The Council argued that the Claimant had not used their internal complaints procedure before issuing proceedings, despite being provided with the details. They wanted the claim to be stayed to allow for ADR and for the Claimant to use their internal procedure.

This case has been described as having “the ability to change the civil litigation landscape” as it will significantly affect how parties deal with disputes and will encourage parties to enter into early mediation, either before being ordered to do so by the Court or after. It is hoped that this will lessen the burden on the Court, meaning that cases which they do need to deal with can be run with tighter timescales and more efficiently.

At Bolt Burdon, we always encourage our clients to consider ADR at an appropriate and early stage to ensure that a dispute can be dealt with as cost effectively as possible. For further information please contact Michelle Footer, who heads up our Real Estate Dispute Resolution team.

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