Mediation groups will target a case coming before the Court of Appeal later this year as a way of finally securing compulsory alternative dispute resolution.
Three bodies have joined forces to intervene in Churchill v Merthyr Tydfil – a case already being described as having the potential to redefine the civil litigation landscape.
The underlying dispute is around a Japanese knotweed claim. However the case will also test whether the courts should finally overturn the long-debated decision in Halsey v Milton Keynes General NHS Trust from 2004, which established that parties could not be compelled to mediate.
In Churchill, the defendant disputed the knotweed claim and said the claimant should have followed ADR options before pursuing legal action.
The county court rejected this argument but permitted a challenge straight to the Court of Appeal. It had been due to hear the matter this month, but granted a later hearing date to allow the joint intervention from the Civil Mediation Council, the Chartered Institute of Arbitrators and the Centre of Effective Dispute Resolution.
They will argue it is time to end the legal precedent set by Halsey and compel parties to mediate. Their express intention is to set aside the Halsey judgment which has been a ‘thorn in the side of mediation’ and stopped some parties from being referred to mediation.
Catherine Dixon, director general of Ciarb, said: ‘Halsey has proved hugely problematic for the wider adoption of mediation. It is generally considered to be bad law and this case offers the Court of Appeal the opportunity to clarify that automatically referring parties to mediation does not breach their human rights.’
James South, chief executive of CEDR, added: ‘Now is the time for the Court of Appeal to adopt a more permissive approach, and to allow judges, in appropriate cases, to order parties to attend mediation and provide more disputants with access to the benefits that we know mediation can bring them.’
Mediation campaigners were boosted in 2021 when a Civil Justice Council report concluded that mandatory ADR was compatible with Article 6 of the European Convention on Human Rights.
Sir Geoffrey Vos, master of the rolls and chair of the CJC, said then that ADR should no longer be viewed as ‘alternative’ but as an integral part of the dispute resolution process, and should focus on ‘resolution’ rather than dispute.
Earlier this month, it emerged that Master McCloud had ordered the parties in a costs dispute to engage in alternative dispute resolution. She said in the resulting judgment: ‘By the time the matter returned to me some time later, the parties had indeed engaged in ADR using qualified costs lawyers and all but one matter had been agreed on the budget, which I think speaks for itself in terms of saving time and money.’
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