Independent Mediators’ provide insight into the recent developments in the mediation sector in the UK
Churchill v Merthyr Tydfil County Borough Council
In a landmark decision, the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] made a significant stride in the evolution of dispute resolution within the legal system of England and Wales. The case, stemming from Merthyr Tydfil’s approach to managing Japanese Knotweed on its land, has revisited the contentious issue of court-mandated dispute resolution processes. Three dispute resolution bodies, The Civil Mediation Council (CMC), Ciarb and CEDR, were intervenors in the landmark case regarding the concept of court-ordered mediation. The aim was to overturn a 2004 Court of Appeal decision that determined that compelling parties to mediate was a breach of provisions in the European Convention on Human Rights that guarantee the right to a fair trial.
Previously, in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002 (Halsey), Lord Justice Dyson’s remarks had been perceived as a barrier to mediation, suggesting that forcing unwilling parties into mediation infringed their right to court access.
However, this view was critically reassessed by a specially convened Court of Appeal panel including Baroness Carr, Lady Chief Justice, Sir Geoffrey Vos, Master of the Rolls, and Lord Justice Birss. They unanimously concluded that Dyson LJ’s observations were merely obiter dicta, and not part of the ratio decidendi. In modern language: ‘they were not a necessary part of the reasoning that led to the decision’, adopting the words of Lord Justice Leggatt in R (Youngsam) v The Parole Board [2019] EWCA Civ 229.
The Deputy District Judge initially reluctantly ruled against compelling the parties to engage in non-court-based dispute resolution processes, citing Halsey. However, the appellate court clarified that while Halsey’s principles remain influential, they are not a straitjacket that binds judicial discretion. Consequently, the court has the authority to stay proceedings for non-court-based dispute resolution if it is proportionate and preserves the essence of the parties’ right to a judicial hearing.
This ruling underscores the court’s commitment to dispute resolution that is fair, expedient, and cost-effective, without strictly prescribing when such measures should be applied. It reaffirms that the Court of Appeal will not lay down absolute rules but will consider the specifics of each case. For practitioners, this decision reiterates the need for a strategic approach to dispute resolution, considering both litigation and alternative methods as viable pathways to resolving complex disputes.
Independent Mediators’ Michel Kallipetis KC was part of the team representing the successful appellant council and Rebecca Clark was part of the team of intervenors in her role as chair of the CMC.
Ministry of Justice integrating mediation into the court process
Following a consultation in 2022 on ‘Increasing the use of mediation in the civil justice system’ it was confirmed in 2023 that mediation would be integrated into all defended small track claims (those valued under £10,000). Unless an exemption is granted by the court, all parties to a defended small claim will be required to attend a free mediation appointment with His Majesty’s Courts and Tribunals Service before their case can progress to a hearing. The mediation session will be provided via the existing Small Claims Mediation Service run by HMCTS. Parties each have an hour-long telephone conversation with the mediator. If settlement is reached a binding settlement agreement is drawn up. This service is free.
The proposal is expected to help an additional 272,000 parties every year to access the opportunity to resolve their dispute consensually through mediation. It is also expected to divert up to 20,000 cases each year from the court system, freeing up judicial resources to be used for complex cases.
The government is also considering whether a requirement to mediate should be expanded beyond small claims.
This initiative forms part of the government’s broader efforts and ambition to help parties realise the benefits of consensual dispute resolution processes, such as mediation, and integrate these processes as a key step within the justice system.
UK signs the Singapore Convention on Mediation
In 2023 the [UK] government became a Party to the Singapore Convention on Mediation (the Singapore Convention). A clear signal to international partners that the UK is committed to maintaining and strengthening its position as a centre for dispute resolution and to promote the UK’s flourishing legal and mediation sectors.
The Singapore Convention responds to the demand from a growing body of mediation users for an enforcement mechanism applicable to mediated settlement agreements in cross-border disputes.
UNCITRAL perceived a need from the international business community for an enforcement mechanism for mediated settlement agreements in international (or cross-border) disputes akin to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
The Convention applies to an agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute (settlement agreement) which, at the time of its conclusion, is ‘international’. International is defined as the situation where at least two parties to the settlement agreement have their places of business in different states; or the state in which the parties to the settlement agreement have their places of business is different from either:
- the state in which a substantial part of the obligations under the settlement agreement is performed; or
- the state with which the subject matter of the settlement agreement is most closely connected.
The Convention does not apply to settlement agreements arising out of transactions for family, personal or household purposes or relating to family, inheritance or employment law, nor to court-approved settlement agreements enforceable as a court judgment or arbitral awards.
On 7 August 2019 The Singapore Convention was signed by 46 states including two of the world’s largest economies – the US and China – as well as three of the four largest economies in Asia – China, India and South Korea. Another 24 countries attended the signing ceremony in Singapore to show their support for the Convention. Since then other states have also signed.
On 25 February 2020, Singapore and Fiji became the first two countries to deposit their respective instruments of ratification of the Convention at the United Nations Headquarters in New York. With the third instrument of ratification deposited by Qatar on 12 March 2020, the Convention entered into force on 12 September 2020.
As of February 2024, the Convention has 55 signatories, of which eight are parties to the Convention.
The team
Independent Mediators comprises ten full-time commercial mediators. They are nationally and internationally recognised for their work. Between them they have mediated over 9,500 matters in almost every sector of business and law. Cases ranges from ten of thousands of pounds in value to multi-billion. They are at the forefront of developments in the mediation sector both in the UK and overseas.
Authors
Rebecca Clark
