Following the handing down of judgment by the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council (“Churchill”) on 29 November 2023, a long-standing thorn in the side of mediation, and other forms of alternative dispute resolution (“ADR”), in the form of the Court of Appeal judgment in Halsey v Milton Keynes General NHS Trust (“Halsey”) has been removed.

Churchill concerned a Japanese Knotweed dispute, so it is with irony that this dispute led to the tied hands of trial judges being unknotted, because Halsey had, since its handing down in 2004, been widely understood to stand for the proposition that the courts cannot stay proceedings for, or order, the parties to engage in mediation, or other ADR forms, where a party is unwilling to do so.

Churchill resoundingly concluded that Halsey was not legally binding in that way, thus, with the thorn in the side of mediation, and other ADR forms, removed, judges in England and Wales can now use the Civil Procedure Rules in a far more proactive way, under the right circumstances.

Churchill concluded that even reluctant parties could have their court proceedings stayed, or an order made, to engage in mediation, or other ADR forms, provided the order does not impair the very essence of the claimant’s (ultimate) right to proceed to a judicial hearing, and is proportionate to achieve a legitimate aim of settling the dispute fairly, quickly and at reasonable cost.

With the lawfulness to stay or order having been confirmed in principle, the Court of Appeal was then careful not to bind the hands of judges by laying down fixed principles as to what will be relevant to determine if the discretion to use such power should be exercised – a checklist or a score sheet was deemed undesirable for judges who are well qualified to decide for themselves.

However, useful considerations were identified by the Court of Appeal as to what factors may be of assistance to judges when considering if the case at hand is suitable for a stay or order to engage in mediation, or other ADR forms, to facilitate a flexible and principled approach being taken.

Part of that consideration goes to the appropriateness of the ADR form proposed. Concerns over timescale, impartiality and fairness may mean, for example, that a defendant’s internal complaints procedure (for which a stay was sought by Merthyr Tydfil CBC in Churchill) may not be the most appropriate process. By contrast, mediation is very much seen to be the gold standard.

The benefit of this approach is that under Churchill a stay or order can be made in the right case and, even if the dispute were eventually to proceed to a trial before a judge because of no settlement, the barb of Halsey, applying costs sanctions against a party that unreasonably did not settle or insisted on a final resolution by trial, remains in place as an added and final deterrent.

This result is very much to the benefit of parties and their lawyers, to achieve a fair, quick and cost effective solution without necessary resort to protracted litigation, because, when appropriate, the courts can facilitate non-court-based dispute resolution at any stage of proceedings.

How could mediation help?

While a mediator sometimes does not become involved until legal proceedings are underway, that usually does not have to be the case, and early intervention can often be far more desirable.

At the point when substantial costs have already been incurred, achieving a satisfactory settlement can become difficult and the extra costs involved can become an obstacle to an amicable solution.

As some disputes can be very expensive and time consuming to resolve formally and may invite unwanted publicity, mediation may facilitate a faster, commercial and discreet resolution.

A wide range of commercial solutions, which judgments or awards cannot achieve, are possible, particularly where there is an on-going relationship, to seek a win-win result, not a bruising win-lose.

A specialist commercial mediator is not only an expert at helping parties reach a mutually acceptable agreement but will understand the commercial situation of both sides and the constraints they face.

The mediator will use their understanding of the way business is done to help the parties to come up with inventive solutions, including ones that the parties might not have considered on their own.

The benefits of seeking an earlier resolution to a dispute

Time is often a big factor in resolving a dispute satisfactorily. Addressing a problem as soon as it is apparent and having an early session with a mediator may resolve the issues promptly by fostering a collaborative approach by the parties and help to improve the relationship.

Where difficulties are allowed to worsen and communication becomes sporadic and combative, it is possible to waste a great deal of time achieving little except a worsening of relations, so it is important to be proactive.

It is also important to approach a problem with an open mind and some flexibility because resolving a dispute at an early stage involves willingness to compromise, and doing so can have many benefits to all involved.

In helping the parties to see the pros and cons of escalating the dispute, and to consider other important ramifications of perpetuating a dispute, a mediator could help the parties to appreciate the perils and to see the value of improving the situation.

Contact us

At Lux Mediation, we offer a range of different Dispute Resolution Services, designed to deal with all types and stages of disputes. We are experienced in and understand the subtleties of online mediation. Our mediators have extensive credentials and experience in areas including maritime, international, EU and general commercial and civil law.

We can step in early to advise you in respect of seeking to resolve a dispute. We work internationally and have an in-depth understanding of cultural differences, which are often of great importance in a successful mediation related to cross-border transactions.

Our mediators are experts in both mediation and commercial enterprise and we have an excellent track record of success in helping businesses to put difficulties behind them so that they can focus on their goals and other more productive activities.

If you would like to explore further whether we can help you to resolve a dispute or you have any questions about the process, please call Lux-Mediation on +44 (0)7876 232305 or email mediation@lux-mediation.com.


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