ADR Bodies Unite to Overturn Judgment that Parties Cannot be Forced to Mediate
BY MARK SMULIAN, LOCAL GOVERNMENT LAWYER
The CMC, CIArb, and CEDR, the leading commercial mediation organisations in the UK, have united to intervene in a case which may overturn the decision in the 2004 Halsey case. Their intervention raises interesting questions about the role of party-led dispute resolution in the civil justice system. “Mediation is a consensual process which empowers people to actively manage and resolve disputes and conflict. It is important that the Court of Appeal is given evidence as to its efficacy and increasing popularity: mediation saves time, money, and court resources.”, says CMC Chair Rebecca Clark.
Three bodies that represent commercial mediators have combined to try to overturn a 2004 judgment that said claimants cannot be compelled to go to mediation.
The Civil Mediation Council (CMC), the Chartered Institute of Arbitrators (Ciarb) and the Centre for Effective Dispute Resolution (CEDR) have intervened in Court of Appeal case of Churchill v Merthyr Tydfil.
Although this case arises from a local Japanese knotweed claim, the three organisations see it as one that might lead to Halsey v Milton Keynes General NHS Trust  being overturned.
Judgment given in the Halsey case decided it was a breach of article 6 of the European Convention on Human Rights – the right to a fair trial – to compel parties to mediate.
A joint statement by the three bodies said: “This decision is considered by many to be wrong because even if the parties are automatically referred to mediation, they are not compelled to settle. If settlement is not reached voluntarily, parties retain access to the courts.
“Although subsequent case law on mediation in the last two decades has sought to moderate the Halsey decision, and despite public comments from some judges that they regret the impact of this case on mediation, it still remains legal precedent.”
They noted Civil Justice Council’s 2021 report Compulsory ADR, had concluded in favour of mediation and that compulsion to use alternative dispute resolution would be lawful and should be encouraged.
CMC chair Rebecca Clark said: “Mediation is a consensual process which empowers people to actively manage and resolve disputes and conflict. It is important that the Court of Appeal is given evidence as to its efficacy and increasing popularity: mediation saves time, money and court resources.”
Catherine Dixon, director general of Ciarb, added: “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.”
CEDR chief executive James South called on the Court of Appeal “to adopt a more permissive approach, and to allow judges, in appropriate cases, to order parties to attend mediation”.
The case has drawn comments from a number of lawyers in the field.