Courts: Homes for mediation as well
A High Court master has explained how judicial mediation was able to resolve a dispute, where one of the sides was unable to afford a private mediation.
A mediator said judges stepping in like this was becoming a “safety net” in such circumstances.
Dover Farm Developments Ltd & Anor v Smith & Anor was a defamation case and at a hearing in July, the defendant litigants in person were unsuccessful in applying to strike out the claim and the claimants were denied permission to amend their particulars of claim.
Last month’s ruling on the papers by Master Fontaine, sitting in retirement, concerned the costs of the hearing, which had been reserved to a further hearing.
But she said “the hearing was not wasted, in my view, because it enabled the parties, at my urging, to consider whether they would agree to a mediation conducted by the court”.
She went on: “Although the court has power to order ADR, this proved unnecessary, as it was apparent that both parties were likely to be in favour of a mediation but that the defendants were unlikely to be able to participate in a privately arranged mediation because of the costs involved.
“I also considered that a mediation would be the most likely method of ADR to achieve a resolution in this particular case. I ordered the mediation by order of 26 July 2025. It took place before Deputy Master Skinner on 19 September 2025 and was successful.”
Writing on LinkedIn, barrister and mediator Peter Causton said the decision suggested that judicial mediation was increasingly becoming a “safety net” for ADR where affordability was the barrier.
“Post-Churchill, the courts have wide powers to direct ADR. Dover Farm shows those powers being used creatively to substitute for the private mediation market when parties can’t pay…
“As workloads rise and litigation costs escalate, this case demonstrates that judicial mediation is emerging as an essential access-to-justice tool, not an exception.”
Barrister and mediator Robin Somerville, who also sits as a deputy district judge, said: “Often when I’m sitting in the county court, after I’ve finished with whatever I was formally asked to decide on, I say to the parties something along the lines of ‘I’m going to mark the file that I should be excluded from having any more to do with this case, in order that I can tell the parties…’.
“I never give a view about the merits of course, but I do tell them that it appears that both sides are investing time, money and emotion in a case that doesn’t appear to be proportionate to the issues or something similar.
“Quite often I then ask them whether they’d like some time outside to discuss the matter. And quite often they come back in having settled.
“The alternative, as identified in Dover Farm v Smith, is for this process to be formalised and listed for a mediation in front of a judge. It would probably result in time and costs savings both for the parties and for the court.”
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