Dispute ResolutionInternational Business

Compulsory Mediation – A way forward during the pandemic

BY MUTHUPANDI GANESAN FCIARB

The benefits of Alternative Dispute Resolution (“ADR”) continue to be recognised by English Courts as well as internationally. The current ongoing pandemic has increased the speed and use of ADR and in particular mediation as an effective method in resolving a variety of disputes. 

On 26 March 2021, the Singapore International Mediation Centre (“SIMC”) and International Centre for Settlement of Investment Disputes (“ICSID”) entered into an Agreement on General Arrangements.  This Agreement provides for the use of SIMC’s facilities and services for mediation proceedings conducted under the auspices of ICSID, as well as enhanced technical collaboration between the two centres.  This Agreement also compliments the use of mediation to settle investor-State disputes, particularly those involving Asian investors or States.  This is a significant step globally in terms of mediation becoming a powerful tool in resolving international disputes. 

On 26 March 2021, the same day as this Agreement in a speech to Hull University, Sir Geoffrey Vos, the Master of Rolls, and Chair of the Civil Justice Council, discussed the notion of compulsory mediation as the Council is looking at whether ADR should be made compulsory. Sir Vos in his speech also highlighted a number of areas where ADR has been successful, including online Mediation Information and Assessment Meetings and Financial Dispute Resolution appointments in family claims and early conciliation notifications to ACAS in employment claims.

A central theme of Master of Roll’s speech was that ADR should not be considered in the alternative, but that mediated interventions should be part and parcel of the process of resolving disputes. Sir Vos suggested areas where ADR could be integrated into the dispute resolution system. For example, the Possession Claims Online (“PCOL”) system should be integrated with the Online Possession Claims system since the two systems often involve the same parties. Further, Sir Vos noted that formal mediation and early neutral evaluation are currently the most common forms of ADR employed in Business and Property claims, but that a wider variety of ADR methods should be used.

A recent decision of the English Court’s suggests that the Courts are also becoming supportive toward the concept of compulsory mediation in resolving dispute between the parties.   In Halsey v Milton Keynes General NHS Trust [2004] 1 WLR, it was held that while the Court may strongly encourage parties to engage in ADR (such as imposing costs sanctions for unreasonable refusals to mediate), the Court does not have the power to compel unwilling parties to do so.

By 2019, the decision in Lomax v Lomax [2019] EWCA Civ 1467 suggested that courts had begun to lean towards requiring parties to participate in ADR. In this case, one party sought Early Neutral Evaluation (“ENE”) but the other party did not consent to ENE.  Ultimately, the Court held that it may order an ENE hearing under Civil Procedure Rules 3.1(2)(m) whether or not the parties give their consent. The decision in Lomax demonstrates the trend towards the integration of ADR within the civil litigation system, as it cited that ADR is compulsory in some family law proceedings.

However, last year, in McParland & Partners Ltd and another v Whitehead [2020] EWHC 298 (Ch), Sir Geoffrey Vos commented in obiter, on the Lomax decision and noted that Lomax ‘inevitably raised the question of whether the court might also require parties to engage in mediation despite the decision in Halsey.’ The parties in McParland agreed to attempt mediation voluntarily, but the comments in the judgement indicate that the Court could be open to reviewing the Halsey decision in due course.

Furthermore, a recent article published in the Law Gazette, in response to Sir Geoffrey Vos’s speech, opined that the concept of compulsory mediation is particularly relevant to online dispute resolution which, due to its format, present many opportunities to nudge parties towards ADR at various stages of a dispute. This point is particularly relevant today as the legal industry has quickly become familiar with engaging in dispute resolution through virtual means, such as using e-filing and remote hearings using Zoom, Skype and Microsoft Teams becoming the norm.  As both legal service providers and consumers become more comfortable with adapting to virtual dispute resolution, they may also become more open and accepting towards other ways to make dispute resolution more cost and time efficient; namely by engaging in compulsory mediation.