Compulsory Mediation in the High Court-Is it a possibility?

A recent change in legislation means that parties in a dispute of a value up to £10,000 must take part in a free compulsory one-hour mediation provided by HMCTS Small Claims Mediation Services.

Philip Rubens, a dispute resolution partner at gunnercooke, has taken a look into what this means and the impact it will have both on the parties and the wider legal system.

“It is hoped that this initiative will be a success and will reduce the burden on the court system, with the anticipation of freeing up to around an extra 5,000 judicial sittings per year. Additionally, it is the first stage of a plan to progressively integrate mandatory mediation for fast track and multitrack County Court Claims.

An interesting question arises as to whether any future legislation will be introduced for compulsory mediation for High Court claims. In High Court actions the parties are typically represented by sophisticated legal advisors on both sides and in addition the parties have chosen to resolve their disputes in England and Wales notwithstanding the fact that the parties themselves may well be resident outside of the jurisdiction.  Undoubtably a substantial number of these actions have been successfully resolved by mediation during the High Court process.

It would be a major step for any Government to introduce compulsory mediation for all High Court Claims for a variety of reasons. In a number of cases the parties are seeking a formal written Judgment in order to establish a precedent in order to determine the rights of the parties. Some parties would not wish to be forced into a compulsory mediation process which might lead one of the parties unsatisfied as being deprived of a judgment of the High Court.  Indeed, some parties may expressly seek alternative dispute resolution centres outside the UK if compulsory mediation was introduced into the UK so they could obtain a full written judgment on their rights and obligations.

In summary, mediation is very much part of the litigation landscape, and this will continue in all Courts. However, we are not likely to see a compulsory mediation scheme for High Court claims as this will be left to the parties and their advisors together with the Court to actively consider during  the course of a High Court action.