The answer given by the Court of Appeal in 2004, in Halsey v Milton Keynes was, “No”. However things may have changed.
One of the bench in Halsey was Sir Alan Ward, who has just taken up the role of chairman of the Civil Mediation Council (CMC). Whether by coincidence or not, he gave the lead judgment in the Court of Appeal in Wright v Michael Wright Supplies Ltd on 27 March 2013, and stated that perhaps Halsey needs to be looked at again.
Sir Alan said that the withdrawal of much of legal aid was based on the hope that parties would use ADR, but that it was impossible to “shift intransigent parties off the trial track on to the parallel track of mediation”. He invited “some bold judge” to stay a case for mediation with a dire cost warning for failure to do so. He thought the courts should “look again at Halsey in the light of the past 10 years development in this field.”
The lead judge in Halsey was Dyson LJ, who is now Lord Dyson, Master of the Rolls. In an address to the CMC a couple of years ago he said that he might in a future case reconsider some aspects of Halsey.
We know that in some jurisdictions, in the USA and elsewhere, courts do compel parties to mediate. And once they are across the threshold, however reluctantly, parties to do usually make progress towards settlement.
At the CMC annual conference on 2 May 2013 leading figures in the mediation world expressed quiet optimism that mediation would become more accepted as a standard part of resolution of disputes, and with a nudge or two from some “bold” judges this will happen. If so, litigants, their advisers, the courts, and also the mediation community will benefit.