Mediation… Where are we now?

Mediation… Where are we now? Beyond Corporate’s Alison Rocca looks at the recent ruling in Churchill v Merthyr Tydfil, and the move to mandatory mediation. 

Following the ruling in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, parties are expected to mediate and the move to mandatory mediation is underfoot.  The Court can, pursuant to its case management powers, order mediation.  In the recent decision in DKH Retail Ltd and others v City Football Group Ltd [2024] EWHC 3231 (Ch) (21 November 2024) (Miles J) the court ordered a mandatory mediation.  The claimant applied for a mandatory mediation before the trial, the Defendant said it was too late in the day and availability was limited.

The Court noted that mediation was “capable of cracking even the hardest nuts”. Although there was some force in D’s submission on timing, there was benefit in the parties’ respective positions having been fully pleaded. Accordingly, the court ordered the parties to mediate during the following month and report the outcome. The parties did in fact settle the dispute before the trial.

It is clear the tide is turning in reference to ADR/ mediation.  The Court not only expects parties to mediate but can order mediation.  This does limit the parties’ rights to choose whether to mediate.  The right to choose has underpinned mediation for years.  The premise of mediation in the UK was built on parties being able to agree willingly to mediate.  In other parts of the world mandatory mediation has been around for years.  Whether mandatory or not, it is clear mediation offers parties the opportunity to settle disputes quickly and often more cheaply than ongoing draw out litigation.

  • Alison Rocca

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