Clark: Mediation now firmly embedded in civil justice system
The Court of Appeal’s ruling yesterday that judges can order parties to engage in alternative dispute resolution (ADR) heralds “a new era of positive change”, one of the intervenors in the case has declared.
In the landmark case of Churchill v Merthyr Tydfill, the court said judges could lawfully stay proceedings for ADR so long as it does not restrict the parties’ ability to proceed to a judicial hearing and is proportionate to settling the dispute fairly, quickly and at reasonable cost.
Several legal organisations intervened in the case, which reviewed the 2004 Halsey decision, which has long been seen as a block to the development of ADR.
The Civil Mediation Council, Chartered Institute of Arbitrators (Ciarb) and Centre for Effective Dispute Resolution intervened together.
James South, the latter’s chief executive, said: “We will now enter a new era of positive change. When justice is looked at from the perspective of the disputants, they want their dispute resolved in a cost-effective and fair way, ensuring they have the opportunity to be heard, and that resolution meets their commercial and personal needs.
“Mediation can provide this, and today’s judgment gives the courts the tools to actively encourage settlement by allowing courts for the first time to order parties to mediate, if in their discretion they consider it reasonable to do so.”
Rebecca Clark, chair of the Civil Mediation Council, added that “mediation is now where it should be – firmly embedded within the civil justice system”.
Catherine Dixon, chief executive of Ciarb, described private dispute resolution as “an integral part of an effective justice system”.
The Law Society also intervened and president Nick Emmerson said: “The Law Society strongly believes that non-court based dispute resolution will usually be in the best interests of the parties, but has always had real reservations about a blanket rule making any form of such process mandatory.
“This judgment reflects those reservations in that it recognises that in some circumstances it may be contrary to a party’s right of access to the courts to compel them to engage in a non-court based dispute resolution process.
“We welcome the Court’s clear guidance as to when and how judges should intervene to encourage non-court based resolution of disputes.”
Bar Council chair Nick Vineall KC – who personally represented it as intervenor – said the court’s conclusion matched that he had advanced.
“ADR in general, and mediation in particular, are powerful tools for resolving disputes and can save parties time, cost and stress. However, whether or not it is appropriate to compel unwilling parties to use ADR techniques will be highly fact specific.”
In an article, Michel Kallipetis KC and Maya Chilaeva from Quadrant Chambers who, along with Iain Wightwick from Unity Street Chambers, acted for Merthyr Tydfill council, said: “For practitioners, this decision reiterates the need for a strategic approach to dispute resolution, considering both litigation and alternative methods as viable pathways to resolving complex disputes.”
The Housing Law Practitioners Association and Social Housing Law Association also each intervened.
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