Churchill clarifies mediation order conundrum

The much-anticipated ruling, Churchill v Merthyr Tydfil [2023] EWCA Civ 1416, down this week, confirms it is not a breach of human rights to order parties to mediate. It was held courts can lawfully stay proceedings or order the parties to engage in non-court-based dispute resolution processes which include mediation.

It overturns Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, which suggested ordering parties to mediate would breach their Art 6 right to a fair trial. The court in Churchill confirmed that comments made by Lord Justice Dyson in Halsey were obiter and therefore not binding on the lower courts.

‘The court’s decision should not only help parties resolve their disputes faster and with less expense, but also save time for the courts and justice system,’ said Elaina Bailes, partner at Stewarts, which acted pro bono for interveners Civil Mediation Council, the Chartered Institute of Arbitrators and the Centre of Effective Dispute Resolution.

Bailes said the ruling was ‘a welcome development for dispute resolution in England and Wales, recognising that alternative dispute resolution is an integral part of the justice system’.

Law Society president Nick Emmerson said the judgment ‘made clear the parameters governing when parties can be required to enter into a non-court-based dispute resolution process before proceeding with a civil claim.

‘The Law Society strongly believes that non-court-based dispute resolution will usually be in the best interests of the parties, but has always had real reservations about a blanket rule making any form of such process mandatory. This judgment reflects those reservations in that it recognises that in some circumstances it may be contrary to a party’s right of access to the courts to compel them to engage in a non-court-based dispute resolution process.

‘We welcome the court’s clear guidance as to when and how judges should intervene.’

Rebecca Clark, chair, Civil Mediation Council, said: ‘Mediation is now where it should be—firmly embedded within the civil justice system.’

James South, chief executive of CEDR, said the judgment ‘gives the courts the tools to actively encourage settlement by allowing courts for the first time to order parties to mediate, if in their discretion they consider it reasonable to do so’.