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Court of Appeal Intervention

CMC, Ciarb and CEDR Unite to Intervene in Court of Appeal Case Critical to Mediation

Joint intervention success as Churchill judgment allows the courts to order parties to mediate

In a significant moment for mediation, the highly anticipated Churchill judgment overturns the decision in Halsey, confirming it is not a breach of human rights to integrate mediation into the court process and, where appropriate, to order parties to mediate. CMC, Ciarb and CEDR joined forces to intervene in the case, arguing strongly for this outcome.

The Court of Appeal has decided that the courts can lawfully stay proceedings or order the parties to engage in non-court-based dispute resolution processes which include mediation. The Court of Appeal went on to confirm that comments made by Dyson LJ in Halsey v Milton Keynes General NHS Trust (2004) 1 WLR 3002 (Halsey) were obiter and therefore not binding on the lower courts.

Halsey suggested that whilst the court may encourage parties to engage in private dispute resolution, including mediation, ordering the parties to mediate would breach article 6 of the European Convention on Human Rights, the right to a fair trial.

Most commentators considered Halsey bad law because even if the court orders parties to undertake a private dispute resolution process, which includes mediation, this does not force the parties to settle and they continue to have access to the courts throughout the process. There was also a widely held view that the comments made by Dyson LJ in the Halsey case were obiter, in other words, persuasive but not binding on the lower courts.

The decision in Churchill v Merthyr Tydfil Borough Council (Churchill), clarifies that the courts are able to integrate mediation, and other forms of dispute resolution, into the court process and may, where appropriate, stay proceedings for, or order mediation.

The Master of the Rolls, Sir Geoffrey Vos, who wrote the judgment, declined to lay down fixed principles as to what would be relevant to determining whether proceedings should be stayed or whether to order the parties to engage in a non-court-based dispute resolution process. Rather he said this should be left to the discretion of the trial judge.

The Civil Mediation Council (CMC), Chartered Institute of Arbitrators (Ciarb) and the Centre for Effective Dispute Resolution (CEDR) jointly intervened in Churchill with the aim of overturning the Halsey decision. Working together on this intervention demonstrates the joint commitment to ensure parties to a dispute have the appropriate level of information and access to both mediation and to qualified professional mediators.

The Churchill judgment enables the courts to order parties to mediate and is yet another step towards the recognition of private dispute resolution as a crucial and integral part of delivering civil justice effectively.

In 2021, the Civil Justice Council (CJC) published its report on “Compulsory ADR” which concluded that that compulsion to use (alternative) dispute resolution is lawful and should be encouraged.

CMC, CEDR and Ciarb, have engaged extensively with the consultation process that the UK Ministry of Justice (MoJ) conducted following the CJC report and submitted responses to all three Government consultations that took place in 2021 and 2022.

In July 2023, following these consultations, the UK Government announced that all small claims in the County Court issued under the standard Part 7 procedure of the Civil Procedure Rules would be referred to the HM Courts and Tribunals Service’s Small Claims Mediation Service. All organisations continue to work with the UK Government on issues including the regulation of mediation and how mediation can be integrated effectively into the civil justice process.

Rebecca Clark, Chair of the CMC says, “As a charity committed to promoting resolution of conflict, we are delighted by this judgment, in which the Court has expressly acknowledged the benefits of mediation for parties who want to resolve their differences cheaply and quickly. Mediation is now where it should be – firmly embedded within the civil justice system. I would like to thank Stewarts and Edwin Glasgow CBE KC and Kelly Stricklin-Coutinho of 39 Essex Chambers who all acted on a pro-bono basis to ensure that the Court had all the evidence it needed in making this decision.”

Catherine Dixon MCIArb, CEO of Ciarb says, “This judgment confirms that integrating mediation into the civil justice system does not breach human rights. Private dispute resolution is an integral part of an effective justice system. Providing parties with access to mediation and other dispute resolution processes supported by qualified dispute resolution professionals, creates more opportunities for parties to reach a resolution appropriate for them. It has been a pleasure to work with CMC, CEDR, Stewarts and Edwin Glasgow CBE KC and Kelly Stricklin-Coutinho of 39 Essex Chambers on this ground-breaking case and I thank them for their wisdom, tenacity and support.”

James South, Chief Executive of CEDR says, “We will now enter a new era of positive change. When justice is looked at from the perspective of the disputants, they want their dispute resolved in a cost-effective and fair way, ensuring they have the opportunity to be heard, and that resolution meets their commercial and personal needs. Mediation can provide this, and today’s judgment gives the courts the tools to actively encourage settlement by allowing courts for the first time to order parties to mediate, if in their discretion they consider it reasonable to do so”.

The CMC, Ciarb and CEDR were represented by Edwin Glasgow CBE KC and Kelly Stricklin-Coutinho of 39 Essex Chambers and Ian Gatt KC, Elaina Bailes and Matt Caples of Stewarts.

Press Release – 8 November 2023

Stewarts is acting pro bono for three mediation groups: the Civil Mediation Council (CMC), the Chartered Institute of Arbitrators (Ciarb) and the Centre of Effective Dispute Resolution (CEDR), who are intervening in a case that has the potential to allow UK courts to compel parties to attempt to resolve disputes out of court.

The CMC, Ciarb and CEDR are intervening in the case of Churchill v Merthyr Tydfil County Borough Council. The three dispute resolution bodies are hoping to overturn the 2004 decision in Halsey v Milton Keynes General NHS Trust, which determined that compelling parties to mediate was a breach of Article 6 of the European Convention on Human Rights which guarantees the right to a fair trial. In 2021 the Civil Justice Council (CJC) produced a report stating that mandatory alternative dispute resolution (ADR) is compatible with Article 6 of the European Human Rights Convention, which is in opposition to the Halsey decision.

The interveners to the case will provide a written intervention, in the hope of introducing ADR to the court process in line with the CJC’s recommendations.

The case is important as it is the first time that there has been an opportunity for a higher court to consider overturning the widely unpopular decision in Halsey.

There is good evidence for the efficacy of ADR in resolving litigation cost-effectively, whether small or modest claims, or complex high-value commercial cases. The out of court resolution of disputes also alleviates pressure on the courts and the justice system.

Ian Gatt, KC from Stewarts comments: “We are delighted to be acting for these leading mediation organisations which have extensive experience of promoting mediation to efficiently resolve disputes. As a specialist disputes firm, we regularly see across our wide range practice areas how valuable alternative dispute resolution can be to narrow issues, save costs and resolve cases quickly and consensually.”

Press Release – 27 June 2023

The leading commercial mediation organisations in the UK have united to intervene in a case which may overturn the decision in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 (Halsey).

Mediation offers parties the prospect of resolving their dispute in a timely manner and cost-effectively. In 2004, however, Halsey decided that 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.

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.

A new development in this debate came in the opinion of the Civil Justice Council’s Report on “Compulsory ADR” published on 12 July 2021. With its statutory duty to review the civil justice system and make recommendations for the Courts, the CJC concluded in favour of mediation and that compulsion to use (alternative) dispute resolution is lawful and should be encouraged.

The Civil Mediation Council (CMC), the Chartered Institute of Arbitrators (Ciarb) and the Centre for Effective Dispute Resolution (CEDR) have joined forces and have been granted the right to intervene in the case of Churchill v Merthyr Tydfil County Borough Council before the Court of Appeal later in the year. The organisations will provide a written intervention. The aim is to set aside the Halsey judgment on article 6 which has proved to be a thorn in the side of mediation in England and Wales, stopping parties from being referred to mediation in many cases.

Rebecca Clark, Chair of the CMC says, “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 adds, “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 says, “CEDR has over 30 years’ worth of experience showing that mediation helps meet the needs of disputants and benefits those that use it. 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.”

Application Documents

About the Civil Mediation Council

The CMC is a charity which promotes the resolution of conflicts and disputes by encouraging the use of mediation. It is the recognised authority in England and Wales for all matters related to civil, commercial, workplace and other non-family mediation and liaises with the Government, the judiciary, the legal profession, different mediation organisations, employers, industry and other stakeholders on mediation issues. Individual mediators and mediation providers registered with the CMC (as per Ciarb and CEDR) are required to abide by a Code of Conduct, which makes appropriate provision for training, insurance, and accountability through a formal complaints procedure.

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Ciarb logo

About the Chartered Institute of Arbitrators

Ciarb is an independent, charitable membership organisation committed to supporting the effective resolution of disputes. Ciarb champions all aspects of dispute resolution across arbitration, mediation and adjudication, setting robust ethical standards. Ciarb delivers learning and networking opportunities, qualifications, mentorship, research and resources, events, and best practice guidance for its members and ADR practitioners globally. Today, Ciarb has 43 Branches connecting more than 17,000 members across 150 jurisdictions worldwide.

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About the Centre for Effective Dispute Resolution

CEDR is a Dispute Resolution Centre for civil, commercial and consumer disputes, operating the Court of Appeal’s Mediation Service and is certified by the Chartered Trading Standards Institute for Consumer Disputes. CEDR’s Mediator Skills Training Accreditation has been awarded to over 9,000 mediators in 70 countries. It is a non-profit organisation and charity with a public mission to innovate and develop the use of conflict management and dispute resolution.

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