By Rupert White


A senior High Court judge has criticised the Court of Appeal's thinking on mediation in the key decision of Halsey v Milton Keynes NHS Trust, which he said was 'clearly wrong and unreasonable'.



Mr Justice Lightman claimed the 2004 ruling has created a barrier to mediation that should be removed.



Giving a lecture at City firm SJ Berwin, the judge said the 'disadvantaged citizen' is 'all too often without legal redress or protection', and that mediation pre-trial was one of the only methods of providing affordable access to justice, even if it is only an 'approximation' of justice.



But, he said, the use of mediation is being stifled by the Court of Appeal's decision in Halsey, in which it laid out that parties could not be forced into mediation and that the burden for 'proving reasonableness' over refusing to mediate is not on the party that refused.



Mr Justice Lightman said these two propositions were 'unfortunate, and clearly wrong and unreasonable'.



'No thinking person can be but embarrassed by the lack of provision by the state of the means for access to the court,' he said. 'And no thinking person can be but disturbed by the imposition of the twin hurdles to mediation [which Halsey] creates to achieving the approximation to justice mediation may afford.'



Forcing people to go to mediation before a trial would not interfere with a right to a trial, he said, adding that the Court of Appeal must have been unfamiliar with the mediation process and confused it with arbitration or another order that places a permanent stay on proceedings.



The judge added that the 'commonsense' position should be that the party which refuses to mediate should have the burden of proving it acted reasonably.



SJ Berwin consultant Phillip Howell-Richardson said: 'There is a growing view among judges that Halsey was wrongly decided. Most mediators have held that view from the outset. It is time to revisit the issues.'