Litigation focus | Mediation revisited

Mediation enjoys a steady relationship with the English courts. The body of relevant case law is slender, and on issues that most concern the mediation community and its users, all roads, it seems, lead to Milton Keynes. That is, the keynote case of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ. 576.

It's a regrettable fact that the UK mediation market is mainly characterised by supply-side saturation as a result of over-training, and the community's principal occupation is getting work - or, more commonly, failing to do so. And so, with green eyes, British mediators look at how US or Australian judges encourage mediation and conclude that ours aren't helping the cause.

Compelling and punishing

In certain jurisdictions outside the UK, judges can compel unwilling parties to mediation and punish those who refuse. The extent to which the English court is willing to entertain such an approach '¨was last before the Court of Appeal in Halsey in 2004.

Back then, for a set of illogical reasons, the court declined arguments in favour of compulsion, and burdened losing parties with proving that winners had been unreasonable in refusing mediation before awarding costs sanctions. And that was the view of the court in 2004: mediation should be encouraged with kind words but judicial intervention was not appropriate.

The story of 2013 (so far) is how far judicial attitudes have shifted in regard to mediation, and just as importantly, why. The key protagonist in this story is Sir Alan Ward. Alongside Dyson LJ and Law LJ, Sir Alan (then Lord Justice Ward) formed the Court of Appeal tribunal hearing Halsey.

On the matter of compulsion of unwilling litigants, the court offered the following view: "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."

However, in a valedictory judgment in Wright v Wright [2013] EWCA CIV 234, Ward LJ noted that in Halsey he was persuaded that ordering parties to mediate would breach their right to a fair trial as enshrined in article 6 of the European Convention on Human Rights.

Silky eloquence

In the same judgment he ponders whether he was "wrong to have been persuaded by the silky eloquence of the éminence grise for the ECHR'¦ to place reliance on Deweer v Belgium (1980) 2 EHRR 439". He also notes some extra-judicial observations of Sir Anthony Clarke, The Future of Civil Mediations, (2008) 74 Arbitration 4, which suggest that the court was indeed wrong.

Sir Alan's remaining comments are rhetorical: "Does CPR 26.4(2) (b) allow the court of its own initiative at any time, not just at the time of allocation, to direct a stay for mediation to be attempted, with the warning of the costs consequences, which Halsey did spell out and which should be rigorously applied, for unreasonably refusing to agree to ADR? Is a stay 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 developments in this field."

While rhetorical, these comments follow '¨a considered attack on the withdrawal of legal aid for cases such as Wright v Wright, in which both parties represented themselves, and then brought an appeal alleging procedural impropriety.

Self-represented litigants

Sir Alan noted that, "It may be saving the Legal Services Commission'¦[but] the expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous'¦[and] the appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is '¨not going to go away."

At the end of 18 years on the bench, like a sinner redeemed, Sir Alan was appointed chairman of the Civil Mediation Council on 1 March 2013. His comments go some way towards suggesting that should a similar set of facts to Halsey be heard again, the likelihood that the court would rule in similar manner is much reduced.

Such news is well received in the mediation community. But it's not all good news. Sir Alan's endorsement of mediation - and by extension newfound judicial sympathy for ordering parties to mediation - is less an endorsement of the merits of a successful process, and more an acknowledgement of how far civil justice '¨has declined.

Whatever the rationale, I speak for '¨many in welcoming the sight of the judiciary on the road to Damascus and away from Milton Keynes.