With the recent UK high profile case of Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the UK legal, law, litigation landscape appears to be finally changing. For several years since the Woolf reforms of 1999, the Civil Justice Report, and the Access to Justice Act, alternative dispute resolution services specifically mediation, have been championed and encouraged. In a bid to save litigants time and money, as well as free up court time.
However, some twenty-five years later, although the UK market’s awareness and use of mediation services has seen somewhat of an increase, we still do not have appeared to fully embrace all of the benefits of mediation.
The UK has seen a steady increase in the use of commercial and workplace mediation but much more needs to be done, to increase the awareness of mediation and its use. Bodies such as the Civil Mediation Council and others are indeed taking on this difficult task, and making headway.
The key turning point, significant importance about the Churchill case, was that the courts and or the judiciary have the power to order litigants to go through mediation. Which is a stark difference to previous case law, which found that the parties could be penalised on costs, even if they won, if they had refused to mediate, unless they had a valid reason to do so.
A fundamental principal of mediation is that in the UK it is entirely voluntary. Certain jurisdictions, however made it mandatory, India, parts of Canada, (Ontario), as well as California in the United States of America.
There has been a long standing debate amongst UK mediators, academics, mediation trainers and the judiciary as to whether mediation services should be mandatory or not in the UK. As to do so would remove the core value of it being a voluntary process. We shall just have to wait and see how matters progress.
