Compulsory mediation
Nichola Evans & Melissa Munday
by Nichola Evans & Melissa Munday
In the UK, for quite some time there has been debate about whether mediation should become mandatory. It's a tricky issue as whilst mediation brings many benefits, such as time and cost savings, and early-stage resolution of commercial disputes, they need to be balanced against issues such as Article 6 of the European Convention on Human Rights (ECHR), which gives citizens the right to a fair trial including access to a court without restraint.
There have been two recent developments which are worth noting and where it seems that there is a move towards mandatory mediation.
Claims up to GBP 10,000 in value
Claims under GBP 10,000 are dealt with on what is known as the small claims track and where only limited costs can be claimed. Despite this, specified money claims of under GBP 3,000 account for around 80% of all newly issued claims in the county court. Litigants with small claims have been reluctant to use the small claims mediation service, with only around 20% of cases being referred to mediation.
The UK government is bringing in mandatory mediation in England and Wales for these specified money claims, and the aim is that mandatory mediation will be rolled out for all small claims.
In practice, parties will be sent to the mediation service after the claim has been issued and a defence filed. The mediation will be free.
The aim is to settle more of these small claims, thereby releasing precious court time for more complex cases and reducing some of the time delays that are currently experienced on larger claims.
Compulsory alternative dispute resolution
The current case law on whether parties who litigate can be compelled to mediate dates back to a case in 2004. In the case of Halsey v Milton Keynes General NHS Trust, it was established that parties could not be compelled to mediate.
The case of Churchill v Merthyr Tydfil concerns a claim being made against a local authority in relation to Japanese Knotweed which the claimant alleged the council had allowed to enter his garden from their land. The council had a dispute resolution/complaints service and argued that the claimant should have been compelled to use the service before bringing proceedings. The court at first instance rejected the argument and the matter has been appealed to the Court of Appeal where the issue will be dealt with this autumn.
In the courts of England and Wales, interested parties can apply to "intervene" in appeals if there is a sufficient nexus between that organisation and the issues at stake. Interestingly we have a number of interventions in this case from the Civil Mediation Council (the governing body for mediators), the Chartered Institute of Arbitrators, and the Centre of Effective Dispute Resolution (a provider of alternative dispute resolution services). The interveners are arguing that the time has come for parties to be compelled to mediate.
We expect the Court of Appeal will update the guidance on when parties should mediate and the behaviours that will be expected of litigating parties going forward.
GGI Member FirmWard HadawayNewcastle upon Tyne, Leeds, Manchester, UKT: +44 330 137 3200Law Firm Services
Ward Hadaway is one of the largest full-service law firms in the north of England, with a reputation for quality, innovation and a practical approach to meeting their clients' needs. With 90+ partners and over 450 staff, the firm's approach of partner-led relationships with all clients is supported by a resource that has real strength in depth.
Nichola Evans is a Partner | Commercial Litigation with Ward Hadaway. Nichola specialises in high value contract claims and has operated in a number of sectors most notably insurance, public sector and health sector. She is known for her commercial, pragmatic approach and has considerable experience of Alternative Dispute Resolution, in all its forms. Nichola is also a CMC Registered Mediator. Contact Nichola.
Melissa Munday is a Managing Associate in Ward Hadaway's Commercial Litigation team. She works in general commercial dispute resolution, has over 20 year’s experience in her particular specialism of commercial, marine and insurance litigation and holds a Masters in Legal Aspects of Marine Affairs and Commercial Law from Cardiff University. Contact Melissa.
