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required to mediate?

6 September 2013

The recent judgment of Ward LJ in Colin Wright v Michael Wright Supplies Ltd and Turner Wright Investments Ltd has cast some doubt on the decision in Halsey v Milton Keynes General NMS Trust in which the Court of Appeal said that to require a party to mediate would be to “impose an unacceptable obstruction on their right of access to court”.

The case

In Wright v Wright, both parties were litigants in person and neither party agreed to mediate.

In his judgment, Ward LJ expressed concerns about two procedural issues that arose in this case:

  • as the parties were litigants in person the judge was forced to micro-manage the parties to ensure fairness and to encourage them to focus on the issues that need to be resolved
  • the judge had tried to persuade the parties on a number of occasions to attempt mediation, but they refused.

Although both points arose from the fact that both the parties in this case were litigants in person, Ward LJ’s comments with regard to mediation may have wide ranging implications in all areas of dispute resolution.

Court’s approach to mediation

In his judgment, Ward LJ considered his previous decision in the Court of Appeal in Halsey, and in particular the statement of Dyson LJ which suggested that a court could not intervene to require the parties to mediate.

Ward LJ cast doubts on his previous view and considered whether the court may direct that mediation be forced on litigants. Although he did not decide on this issue in this case, he said that he looked forward to a review of this issue by a “bold judge”.

Ward LJ also considered whether the existing Civil Procedural Rules might allow the court to direct that the proceedings are stayed in order to allow a mediation to be attempted, where the parties had expressed an unwillingness to go down this route.

What are the implications?

Whether the comments in Halsey regarding mediation will be considered again and whether the court will require parties to attempt mediation before coming to court, remains to be seen.

The court already has the ability to impose significant cost penalties on a party who refuses to mediate and, often as a result, parties to litigation proceedings already seriously consider the option of mediation at some point in the proceedings.

The advantages of mediation and other forms of alternative dispute resolution are widely accepted throughout the legal profession. Mediation encourages parties to communicate and negotiate the issues in dispute and leads to a number of claims resolving without ever having to go to court, ultimately saving the parties, and the court, time and money.

Given the advantages of mediation, and the costs penalties that may result in the event a party unreasonably refuses to mediate, it should always be given serious consideration.

It would be a very bold step for any party to refuse to mediate.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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