Compulsory Mediation?

6 Dec, 2019

In 2004 in  Halsey v Milton Keynes General NHS Trust  the Court of Appeal held that:

‘to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.’

Nearly 10 years later, the Court of Appeal in Wright v Michael Wright Supplies Ltd [2013] had to consider an appeal concerning a dispute between two businessmen who had fallen out which cried out for mediation. In the course of his judgment Sir Alan Ward, who had been a member of the Court in Halsey, wondered whether the reluctance in Halsey to impose mediation might have been obiter and/or wrong. He asked, in an obiter aside:

‘Is a stay [to allow for mediation] really ‘an unacceptable obstruction’ to the parties right of access to the court if they have to wait a while before being allowed across the court’s threshold? Perhaps some bold judge will accede to an invitation to rule on these questions so that the court can have another look at Halsey in the light of the past 10 years of development in this field.’

That invitation found no immediate takers, but in Lomax v Lomax [2019] EWCA 1467 the Court of Appeal, in the course of deciding that CPR 3.1 (2) (m) permits compulsory Early Neutral Evaluation, indicated that ‘the court’s engagement with mediation has progressed significantly since Halsey was decided’ [para 27]. They pointed out the judicial view that the introduction of compulsory Financial Dispute Resolution appointments in the family courts since 1996 had been ‘outstandingly successful’.

Clearly there is now greater judicial appetite for compulsory ADR. Who will take up the invitation?

Grahame Aldous QC

Click here for the 9GS mediation team


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