- November 30, 2023
- Posted by: Suzanne Dennehy
- Category: News
Landmark Ruling by Court of Appeal in England and Wales clarifies that Courts can integrate Mediation and other forms of Dispute Resolution into the Court Process. Here Eamon Harrington gives an overview of the judgement.
The Court of Appeal in England and Wales issued a long-awaited judgment on 29th November 2023, confirming that the court can lawfully stay proceedings for, or 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.
The Court declined to lay down fixed principles as to what will be relevant to determining the questions of a stay of proceedings or an order that the parties engage in a non-court-based dispute resolution process. Instead, the Court mentioned many of the factors that will be considered and said that the nature of the process contemplated will be relevant, as will other circumstances.
Factors that could be relevant to the exercise of the court’s discretion include:
- the form of ADR being considered
- whether the parties were legally advised or represented
- whether ADR was likely to be effective or appropriate without such advice or representation
- whether it was made clear to the parties that, if they did not settle, they were free to pursue their claim or defence
- the urgency of the case and the reasonableness of the delay caused by ADR,
- whether that delay would vitiate the claim or give rise to or exacerbate any limitation issue,
- the costs of ADR, both in absolute terms, and relative to the parties’ resources and the value of the claim
- whether there was any realistic prospect of the claim being resolved through ADR,
- whether there was a significant imbalance in the parties’ levels of resource, bargaining power, or sophistication
- the reasons given by a party for not wishing to mediate: for example, if there had already been a recent unsuccessful attempt at ADR, and
- the reasonableness and proportionality of the sanction, in the event that a party declined ADR in the face of an order of the Court.
The decision in Churchill v Merthyr Tydfil Borough Council (Churchill) clarifies that the courts can integrate mediation, and other forms of dispute resolution, into the court process and may, where appropriate, stay proceedings to allow for, or order mediation.
This is a very positive development, acknowledging the benefits that Mediation brings to all parties to litigation. To find out more about CKT’s work in ADR and Mediation, see here
Eamon Harrington is a CEDR Accredited Mediator and a former chairman of the ADR committee of the Law Society