Mediation has been a useful tool to resolve disputes for many years. Sadly, in 2004, the Court of Appeal made a decision that has held back the use of mediation for 20 years.

In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, Lord Justice Dyson said:

“To oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”

Ever since that decision, to force mediation has been seen as a breach of the parties’ right to a fair trial under Art. 6 of the European Convention of Human Rights, and so its use has cooled.

Churchill v Merthyr Tydfil ruling

In the recent case of Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the Court of Appeal, comprising the Lady Chief Justice, the Master of the Rolls (Sir Geoffrey Vos), and the Deputy MR (Lord Justice Birss), departed from Halsey, deciding that Dyson LJ’s comments were obiter (not binding), and found that the court can make an order for:

  • the parties to engage in non-court-based dispute resolution (‘NCDR’) (including mediation); and/or
  • a stay in proceedings to allow for NCDR to take place.

This brings mediation back into the ‘toolbox’ of the court’s dispute resolution options.

Sir Geoffrey Vos, Master of the Rolls, gave the leading judgment in Churchill and cited the Civil Justice Council’s report on Compulsory ADR, which found:

‘[A]ny form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ article 6 rights’.

Therefore, a Court Order may include the use of ADR, provided it does:

‘[N]ot impair the very essence of the claimant’s right to proceed to a judicial hearing, and [must be] proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.’

Why Churchill is good news

The Churchill judgment confirms that mediation may be ordered and is not a preclusion on a right to trial and contrary to the Human Rights Act; this is positive for cost control.

Mediation is confidential, and those in dispute can confidently discuss their issues with a mediator to find resolutions safe in the knowledge no one will use what they say against them. Compared to court resolution, it is fast and less costly. Most usefully, mediation gives those in dispute control as to how they settle a dispute. It’s a no-fault agreed resolution process to end conflict. Better still, unlike confrontational dispute resolution it can preserve relationships. If you want to keep working with someone, then mediation may be the best way to move past your problems.

Effective mediation gives opportunity to resolve disputes without court hearings. Those looking to enforce their intellectual property rights, and those accused of infringing the intellectual property rights of others should now be more open to mediation. Prior to the Churchill case, some parties were reluctant to mediate, and they could rely on the judgment in Halsey to avoid it. Now, following Churchill, parties should be considering the benefits of a mediation, because if they refuse, they may be ordered to do it anyway by the court and have to pay costs for the application.

James Tumbridge has over 20 years’ experience as a qualified mediator. If you have any questions on the mediation process following the Churchill judgment, please contact James.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.