Home / Mediation: Is it compulsory?
4th December 2023
Nichola Evans, Partner & Head of Litigation
Mediation is a flexible, confidential process whereby an independent third party assists the disputing parties to settle their disputes. The vast majority of disputes that are referred to mediation settle, either on the day or shortly thereafter making it a very important tool for parties to utlilise in litigation.
The Court of Appeal has considered whether a court has the power to pause a claim for or order the parties to engage in a non-court-based dispute resolution process, generally mediation. Then, if it does, when that power can and should be exercised. To date whilst parties will be penalised in costs if they refuse to mediate or engage in discussions as to whether to mediate, there was no judicial authority that mediation was compulsory or that the courts could stay proceedings to allow alternative dispute resolution to take place.
The court recognised that there is a balancing act to be carried out; that there is a right to proceed to a judicial hearing/trial but, at the same time, that the parties need to resolve cases quickly and fairly at a proportionate cost. It, therefore, held that proceedings could be paused by the court and an order made for the parties to engage in mediation (which is a new development). The decision whether to pause proceedings to allow mediation to take place is a discretionary one for the judge recognising that cases will need to be assessed on a case-by-case basis.
Where does this leave litigants? When conducting litigation litigants will need to be savvy and strategic looking at all the tools in their armoury to try and resolve matters or narrow the issues down. This will involve not only looking at whether litigation is necessary but also whether mediation and the use of early offers of settlement should be utilised to cut through disputes.
For more information in relation to the use of Alternative Dispute Resolution please contact our Litigation Department.
Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416