The court can order parties to mediate – so says the Court of Appeal

December 22, 2023
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In the much anticipated decision of Churchill v Merthyr Tydfil County Borough Council the Court of Appeal has decided that the court has power to stay a claim for, or order, the parties to 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.  Lord Vos, the Master of the Rolls:

The court should only stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost” (para 65).

The Court of Appeal declined to specify when a court should order a stay for, or order parties to engage in such a process. A number of factors were discussed but the Master of Rolls made clear that judges should not be pinned down by any list. Each case will turn on its own facts:

“I do not believe that the court can or should lay down fixed principles as to what will be relevant to determining those questions. … It would be undesirable to provide a checklist or a score sheet for judges to operate. They will be well qualified to decide whether a particular process is or is not likely or appropriate for the purpose of achieving the important objective of bringing about a fair, speedy and cost-effective solution to the dispute and the proceedings, in accordance with the overriding objective.”

It should be borne in mind that the case wasn’t actually about mediation. The issue was whether a claimant should have accepted the defendant’s offer to go through their internal complaints procedure before turning to litigation. It will take time for the decision to bed down into the civil litigation system and practitioners should keep an eye out for further cases which address the interplay of the various factors involved. It will be a pity if satellite litigation develops!

It is not unrealistic, however, to expect the volume of property mediations (and mediations generally) to increase. Indeed, it is probable that over time it will become routine for judges at CCMCs to ask parties why the claim in question should not be stayed for a mediation; or why a mediation should not be ordered.

One of the factors that is highly likely to be considered relevant is the nature of the dispute. Property disputes, as is frequently said, lend themselves to mediation because the parties are often able to agree settlements that a court cannot order. No doubt neighbour disputes, such as boundary and rights of way disputes, are the sort of case where parties might be ordered to mediate.

What does it mean, that the court can order mediation? Probably no more than that they must arrange for and turn up at a mediation.  It would be inconsistent with the confidentiality of the process to order anything more.

What if a party ordered to attend a mediation refuses or fails to turn up? What will be the sanction?  We will have to wait to see.

This is a shortened version of a longer article written by Rupert Cohen and Jacqui Joyce that first appeared in the Estates Gazette.  Rupert appeared for the Law Society in the case.


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