In recent years, UK courts have increasingly encouraged the use of mediation as an alternative dispute resolution (ADR) method, moving away from traditional litigation in an effort to lessen the burden on the courts and ensure more efficient and amicable resolutions. Mediation offers parties the opportunity to resolve disputes outside of the courtroom, which is often faster, less costly, and more flexible.
One of the most compelling reasons for the court’s increasing push for mediation is the significant financial impact that legal proceedings can have on all parties involved. Traditional litigation, especially in complex or high-stakes cases, can result in substantial legal fees, which may become a barrier to justice for many. The cost of court hearings, legal representation, expert witnesses, and other associated fees can quickly escalate, often resulting in a financial burden that can outweigh the potential benefits of pursuing a case to trial.
This push has of late been featured by judgments in the following recent cases, such as Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 and Elphicke v Times Media Ltd [2024] EWHC 2595 (KB), both of which have highlighted the benefits and judicial expectations surrounding mediation.
The Role of Mediation in the Churchill v Merthyr Tydfil Case
The case of Churchill v Merthyr Tydfil is a notable example of the court’s commitment to promoting mediation. The claim involved a civil dispute in relation to Japanese knotweed that encroached on the Claimant’s property from the adjoining land to the east, land that was owned by the local council; the Defendant. The Claimant issued proceedings against the Council in July 2021. In February 2022, the Defendant issued an application for a stay on the basis that the Claimant should have first sought to remedy the issue by employing the use of the Defendant’s complaints procedure. In the County Court, the Defendant’s application was refused on the grounds the Court was bound by Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 in which the Court of Appeal had said that “to oblige unwilling parties to refer their disputes to mediation would unacceptably obstruct their right of access to the court”. However, the Judge did comment that the Claimant had acted unreasonably in failing to engage with the complaints procedure, and that his conduct was contrary to the relevant Pre-Action Protocol.
The Court of Appeal was asked to determine (1) whether a court can lawfully order the parties to court proceedings to engage in what was described as “a non-court-based dispute resolution process”, and, (2) if so, in what circumstances it should do so. The Court of Appeal concluded that, as the decision in Halsey centred on the issue of costs sanctions, the question of whether the court had power to order ADR was not part of the justification for those conclusions and so the decision on that point was ‘obiter’.
Therefore the first instance judge in the present case was wrong to conclude they were bound by the Halsey decision. Nevertheless, the Court of Appeal went on to consider whether a court can lawfully stay proceedings for the parties to engage in ADR or, indeed, direct the parties to engage in such a process. It found that a court could make either order, so long as the exercise of the power did not prejudice any rights under Article 6 of the ECHR, was in pursuit of a legitimate aim, and finally was implemented in such a way that it was proportionate to achieving that aim. The Court made reference to the Civil Justice Council’s June 2021 Report on Compulsory ADR which expressed the views that “any form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 rights” and “we think the balance of the argument favours the view that it is compatible with Article 6 for a court or a set of procedural rules to require ADR”.
After concluding the same, the Court then considered the circumstances in which the Court may grant a stay or order the parties to engage in non-court based dispute resolution. The Bar Council, as one of the intervenors, suggested the following factors as relevant to the exercise of the court’s discretion:
- whether the alternative dispute resolution proposed was likely to be effective;
- the urgency of the case and any delay caused by the alternative dispute resolution;
- the costs of the proposed alternative;
- whether there was any significant imbalance in the parties’ resources, bargaining power or sophistication;
- the reasons given for a parties’ refusal, for example if there had been a previous unsuccessful attempt at mediation; and
- the reasonableness and proportionality of the sanction in the event of a refusal to engage in alternative dispute resolution.
Whilst the Court noted that these factors were not overly dissimilar to the factors outlined in ‘Halsey’, and were likely to have “some relevance”, it declined to set out a fixed checklist to bind judges.
Master McCloud’s Judgment in Elphicke v Times Media
Another case that highlights the growing judicial support for mediation is Elphicke v Times Media Ltd [2024] EWHC 2595 (KB), where Master McCloud was unequivocally clear regarding the necessity of mediation in resolving disputes. The case, which involved a claim of defamation, saw the court explicitly encouraging both parties to pursue mediation as a way to avoid the protracted and costly nature of the detailed assessment proceedings.
Master McCloud’s judgment in this case was particularly significant because it highlighted not only the effectiveness of mediation in reaching settlements but also the court’s increasing expectation that parties make genuine efforts to resolve their differences through ADR. Having ruled that the Defendant’s costs should be discounted by 80% to reflect the failure by the newspaper to preserve evidence, the Master proceeded to direct that before those costs could be assessed, the parties must engage in ADR at a level not less than mediation, a resolution process which requires the input of costs lawyers.
These cases are part of a growing trend within the judiciary, where judges are making it clear that mediation is not just a suggestion but a requirement for litigants. This has become particularly important in cases where the court is trying to alleviate its caseload and expedite the process of resolving disputes.
Judicial Expectations and the Future of Mediation
The court’s emphasis on mediation is expected to continue growing in the coming years. Legal professionals now recognize that mediation is an integral part of the dispute resolution process, and more courts may follow the lead of judges in Churchill v Merthyr Tydfil and Elphicke v Times Media by encouraging or even mandating mediation.
With these increasing judicial expectations, it is likely that mediation will continue to play a central role in shaping the future of legal disputes in the UK. Lawyers, litigants, and parties involved in legal matters must be prepared to engage in the process seriously, as the courts will increasingly view the failure to do so as an unwillingness to resolve disputes effectively.
Conclusion
The cases of Churchill v Merthyr Tydfil and Elphicke v Times Media underscore the importance of mediation in modern legal practice. The courts are making it clear that mediation is not only an option but often a necessary step in resolving disputes. The growing emphasis on mediation is closely tied to the need to reduce legal costs, which can be crippling for litigants and the justice system as a whole.
As these cases demonstrate, the shift toward mediation is reshaping how disputes are handled, ultimately benefiting both the judicial system and the parties involved by providing a more efficient, cost-effective, and flexible alternative to litigation. Moreover, the move towards mandatory mediation, as seen in Churchill v Merthyr Tydfil, represents a significant shift away from the principles established in Halsey v Milton Keynes General NHS Trust, reflecting a new judicial approach where mediation is seen as not just an option but a key part of resolving disputes before litigation
Now that ADR is being mandated even in cost proceedings, here’s how we might be able to support your practice:
Experienced Mediators with a Focus on Practical Solutions
Our cost mediators bring a wealth of experience in handling a variety of cost disputes. With a deep understanding of legal and business dynamics, we work collaboratively to help parties find mutually agreeable solutions, reducing the need for lengthy and costly litigation.
A Customized Approach to Each Matter
We understand that no two disputes are the same. Our approach is flexible, and we take the time to tailor our mediation process to suit the specific needs of each case—whether it’s resolving legal cost disagreements, contractual disputes, or other civil matters.
Confidential and Neutral Environment
One of the key benefits of mediation is its confidentiality. We create a safe space for open dialogue, allowing the parties involved to explore creative solutions that they might not have considered in a courtroom setting.
Enhancing Client Relationships
Ultimately, our goal is to help you resolve disputes in a way that benefits both your clients and your firm. In our experience, when it comes to cost proceedings, the lay client’s no.1 bugbear is the length of time it takes to resolve costs. By offering mediation as a resource, you can help clients resolve costs swiftly and be more satisfied with the outcomes of their disputes—often leading to stronger, longer-term relationships.
If you would like to discuss how our mediation services may fit into your firm’s approach to dispute resolution, feel free to get in touch.