Mediate or else!

It had been said in the past that it was a party’s constitutional right to be heard at trial to resolve a dispute.

No longer.

The right to trial was the thrust of one the hitherto leading authorities as to whether ADR or mediation was a step that the court could and should order - see the Court of Appeal in Halsey v Milton Keynes General NHS Trust  - “It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us 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.” 

It seems to me that an especially convened heavy weight Court of Appeal (including the head of the judiciary and head of the Court of Appeal) was deployed to stick the boot in and overturn this position.

And it went on to state that it is not necessarily an infringement of a party’s right to access to justice (and therefore Art. 6 ECHR) if a stay in proceedings is ordered to permit mediation even if one (or both?) of the parties did not wish to participate - if the circumstances were right.

And here the Court gave itself some wiggle room for the future by stating that it didn’t think it necessary that “the court can or should lay down fixed principles as to what will be relevant to determining those questions”

Is mediation good? Is it such a good thing that party intentions should be ridden rough shod over?

Well litigation is too expensive - that is a given.

And it only ever worked if there was a will on all parties to come to a settlement – maybe in the light of this case, this drag factor will recede into the background.

But it needs to be done at an early stage of the litigation.

Ideally it needs to be held before the typical steps in litigation such as disclosure exchange of witness statements and exchange of expert reports – otherwise the bulk of costs will have been incurred and you might as well have a trial. At least this way you wouldn’t need to pay a mediator (the good ones are not cheap) or hire a venue – the judge and court room come free (well wrapped up to a degree in court fees).

If I am honest, on receipt of instructions you get a feel for the merits of a matter and it is very very rare that something is thrown up in the disclosure process or exchange of witness statements that materially alters the initial assessment.

So any mediation could and should be done at the earliest time.

The big problem I foresee is getting other parties to share this view – most mediations are decided upon at the case management conference and, after this case, there will be more such referrals to mediation at this point.

But they, case management conferences, in themselves form an expensive stage in litigation, what with cost budgeting. 

As they taken place generally after parties have exhausted the stage of exchanging statements of case, in my opinion, the parties should know their respective cases such that a meaningful mediation should be possible.

Whether that becomes widespread, remains to be seen.