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Should the court have the power to make parties engage in mediation?

03 April 2024

Should the court have the power to make parties engage in mediation? Our team of experts look into a recent case that sheds light on changes to how courts can handle certain situations.

In the recent decision handed down in the case of Churchill v Merthyr Tydfil County Borough Council (2023), the Court of Appeal ruled that the courts now have the power to stay proceedings and order parties to engage in ‘alternative dispute resolution’ (ADR) and mediation.

It therefore follows that the Court of Appeal have overturned the longstanding precedent of Halsey v Milton Keynes General NHS Trust (2004), which established parties could not be forced to engage in mediation.

The decision in Halsey was criticised because of the underlying fact that parties participating are not forced to settle their disputes at mediation, and still have access to the court in any event. The Court of Appeal also deemed the previous decision in Halsey to be no longer reflective of the general direction to encourage the use of ADR and mediation.

However, the decision in Churchill does not go as far as some have campaigned for and has stopped short of making mediation compulsory in all proceedings. The Court of Appeal provided that an order to stay proceedings for ADR and mediation should only be ordered where it “does not impair 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.”

In deciding whether to stay proceedings and order parties to engage in mediation, the court will consider the following:

  • the cost to mediate and the financial situation of both parties
  • whether the case is suitable for mediation
  • why parties may decline to participate in mediation.

As a result of the decision in Churchill, there is potential to bring about a significant shift in the case management of proceedings, by encouraging parties even further to consider settlement at an earlier stage.

It has become apparent in recent years that mediation is usually in the best interests of both parties. If you are involved in a dispute and would like to discuss the potential benefits of ADR and mediation, please do not hesitate to contact us.

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Our Legal 500-rated litigation & dispute resolution team help private and commercial clients to resolve a wide range of disputes, including matters that can be resolved through mediation.

Disclaimer: All legal information is correct at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation - contact us; we’d be delighted to help.
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Simon Arneaud LLB (Hons)
Senior associate, solicitor
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