Mediation at the Heart of Dispute Resolution

Two years ago, at the London International Dispute Week, the Master of the Rolls, Sir Geoffrey Vos, revealed his vision for a complete overhaul of dispute resolution system in the UK. One aspect involved greater digitalisation of the process, which he explained in detail.

The second aspect involved the introduction of pre-trial procedures which would have built into them, automatic directives requiring ( and not simply “encouraging”) genuine engagement in, and striving for, a mediated settlement. What used to be regarded as “alternative” dispute resolution, would become an integral part of the judicial process. In January 2021, he had commissioned the Civil Justice Council to report on the legality of compulsory ADR. Its report was published in July 2021, and it effectively swept away the concerns expressed by a previous Master of the Rolls, Lord Dyson ( who himself was somewhat constrained by ECHR authority), to the effect that mandatory mediation may involve an infringement of Article 6 rights of access to court. The Council concluded that, if there is no obligation on the parties to settle (always the case in mediation) then there is no “unacceptable constraint” on the right of access to court. In the European context, the Unidroit Civil Procedure Rules (Rule 9(1)) indeed now require parties to co-operate in seeking consensual resolution.

One of the perceived problems in the past, concerning court mandated mediation, had been conceptual and jurisdictional. Is it open to the court, to which the parties have come for the resolution of their dispute, to require them to go elsewhere to seek that resolution, whilst at the same time being seized of the case? This question tends to be based on the view that the court system and mediation, are two different and distinct worlds. However, by virtue of the authority to be found in the Judicial Review and Courts Act 2022, the Online Rules and Procedure Committee now has power to issue regulations integrating mediation formally within the judicial process.

At the heart of these changes, was the assessment by the Master of the Rolls (supported by multiple studies), of the emotional and economic toll taken on the lives of litigants. People involved in litigation are often overwhelmed by the strain of it all, and are largely removed from both domestic life, and indeed the workplace, while the case proceeds. The losses to society caused by protracted litigation, both in terms of mental health, and the wider economy, are huge.

I wonder whether even the Master of the Rolls could have predicted the speed with which his vision would become a reality? Within that two year period we have had:

(i) The Court of Appeal decision in Churchill v Merthyr Tydfil County Borough Council [2023} EWCA Civ 1416, to the effect that a judge may order the parties to engage in a non-court-based dispute resolution process, provided that the order made, does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost. Significantly, both Sir Geoffrey, and Lady Chief Justice Carr (head of the Judiciary of England and Wales since October 2023) were members of the court reaching this conclusion

(ii) Lady Chief Justice Carr, extending and building upon the Master of the Rolls’ vision, in her own address to the London International Dispute week, just this month, on 4th June 2024. She encouraged yet greater cross fertilisation between different approaches, and explored whether one way in which London might continue to develop better practice, would be to offer itself as a world-leading centre for dispute resolution, and for the three main forms of dispute resolution — mediation, arbitration and litigation — to come together and consider how they can best complement and learn from each other.

The two leading Law Officers in the country are enthusiastically on board for the utilisation and expansion of mediation in new and dynamic ways. We live in exciting times!