High Court judge Mr Justice Lightman last week called for a formal direction on forcing parties into mediation.


Speaking at the Law Society's Dispute Resolution Section annual conference, the alternative dispute resolution stalwart said this year's EU directive on mediation 'makes plain that the court can and should have the freestanding and independent power to order mediation... There is, however, a need for an authoritative pronouncement to this effect'.



Following the Court of Appeal's Halsey ruling in 2004, he said, courts in England and Wales are still 'naturally and understandably' refusing to order mediation in the absence of consent.



He also reiterated his wish to see the evidential burden reversed in refusals to mediate and placed on the party refusing, saying the opposing party can 'refuse mediation or abuse its procedures with practical impunity'. The ability to order mediation regardless of parties' wishes is 'essential if mediation is to play its full part in our system of dispute resolution', he said.



The judge, who retires from the bench next month, said his push for mediation to be brought forcibly to the forefront of dispute resolution is because the measures taken to replace public funding of legal representation are failing.



'It was all very well for the government to say, when it introduced the Human Rights Act, that it was "bringing rights home",' he said. 'But it was a hollow boast when those in most need of recourse to the law were at the same time being deprived of the necessary funding to protect and enforce them.'



Rupert White