Three leading commercial mediation organisations are planning to make a written intervention in the forthcoming appeal of a case seen as pivotal in determining mediation’s status in resolving civil disputes.

The Civil Mediation Council (CMC), the Chartered Institute of Arbitrators (CIArb) and the Centre for Effective Dispute Resolution (CEDR) are weighing in on the appeal – Churchill v Merthyr Tydfil County Borough Council – which could potentially overturn a previous 20-year-old ruling (Halsey).

Herbert Smith Freehills disputes partner Alexander Oddy, who leads on alternative dispute resolution (ADR) for his firm, said the Churchill case was based on whether a complainant must follow a local authority’s complaints procedure before commencing proceedings.

He said: “The appeal opens the prospect of a wider reconsideration of whether courts can force parties to use ADR including mediation – to enforce the courts’ pre-action protocols or even more widely,” and thus overturn Halsey.   

The case of Halsey v Milton Keynes General NHS Trust (2004) has long been controversial, said Paul Sills of Arbitra International, noting that mediation offers parties the prospect of resolving their dispute quickly and cost-effectively. In 2004, however, Halsey decided it breached Article 6 of the European Convention on Human Rights (the right to a fair trial) to compel parties to mediate.

Sills said: “Halsey confuses mandatory participation in the mediation process with the voluntary decision to settle. Self-determination is the cornerstone of mediation and is not eroded by mandatory participation. When parties are ordered to mediate, you are not enforcing cooperation and consent. You enforce their participation in a process from which cooperation and consent might come.”

His colleague, Wolf von Kumberg, agrees, calling the case “a thorn in the side of mediation”. At the same time, a court may strongly encourage parties to engage in ADR (including imposing costs sanctions for unreasonable refusal to mediate). Still, it stops short of compelling unwilling parties to do so. The Article 6 argument, von Kumberg said, was “very unhelpful”.

“Most people view it as bad law because there is no compulsion to settle in mediation, and if the parties don’t settle, access to the court is not restricted. It is not, therefore, an appropriate circumstance to apply [Article] 6,” he added.

Subsequent case law sought to moderate the Halsey decision, but it remains a legal precedent. More recently, the Civil Justice Council issued a 2021 report which concluded that the compulsion to use (alternative) dispute resolution is lawful and should be encouraged.

Rebecca Clark, chair of the CMC, said that “mediation is a consensual process that empowers people to actively manage and resolve disputes and conflicts. The Court of Appeal must be given evidence of 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.”

James South, chief executive of CEDR, said: “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.”

Oddy said the reform “may make good sense in at least some lower-value claims, but for larger commercial cases where mediation is already widely used, more nuanced questions arise as to whether mandatory mediation is required.”

Sills agreed but noted: “Commercial parties, in particular, mandate their participation in the mediation process frequently using multi-tier dispute resolution clauses that include mediation as a necessary step, often a prerequisite to arbitration or litigation,” which, he said, was conceptually little different from the CJC’s suggestions.

Mediator Henrietta Jackson-Stops, one of London International Disputes Week’s new three lead directors, noted from conversations held during LIDW23 that “many jurisdictions are seeking to manage their caseloads via varying different means to encourage the settlement of cases. In-house counsel is also clear that mediation is increasingly part of their dispute resolution strategy.”

She added: “Delegates were keen to learn more about the UK government’s consultation on making mediation mandatory for certain cases. The UK’s recent signature of the Singapore Convention on Mediation signals its commitment to mediation’s role in resolving international cross-border disputes.”