Edward Fox of Fee Langstone looks at how compulsory mediation, under Section 145 of the Trusts Act 2019, allows the Court to order unwilling parties in trust disputes to participate in alternative dispute resolution, provided the dispute qualifies as an "internal matter." While it undermines the voluntary nature of mediation, this power has proven to be an effective tool, with high settlement rates even in cases where mediation was compelled, making it a valuable resource for resolving trust-related disputes.
Read MoreMediation is a form of Negotiated Dispute Resolution (ADR), which involves a process of structured ‘without prejudice’ negotiation facilitated by an impartial third party known as a ‘mediator’. The aim is to produce a settlement of the dispute that is acceptable to both parties, and the process enables them to retain control over whether or not they wish to settle, and on what terms. Click here for the link to download the guide created by Nicola Gare of HFW:
https://www.hfw.com/insights/client-guide-making-the-most-of-mediation/
Read MoreA recent Irish High Court decision reduced a costs award. This reduction occurred because the plaintiffs’ solicitor failed to comply with the statutory obligation to advise about mediation before commencing proceedings. An English court has also recently imposed a greater reduction on recoverable costs arising from a party’s refusal to consider mediation. Gearoid Carey and Gerard Kelly, partners at Mason Hayes & Curran, examine this decision in the context of an apparent greater judicial willingness to get parties to mediate or else suffer potential cost consequences.
https://www.mhc.ie/latest/insights/beware-of-not-mediating-a-dispute#page=1
Read MoreA recent Court of Appeal decision in England ruled that parties can be compelled to engage in alternative dispute resolution (ADR), departing from the traditional view that ADR is purely voluntary. While this decision raises questions about the future of compulsory ADR in Scotland, no similar requirement currently exists, though the ruling may influence future procedural developments.
Read MorePhoebe Price of UK law firm Browne Jacobson, looks at how the Court of Appeal's decision in Churchill v Merthyr Tydfil Council allows courts to mandate parties to engage in non-court dispute resolution processes, such as negotiation, mediation, or internal complaints procedures, before taking legal action. This ruling provides local authorities with an opportunity to resolve low-value disputes more efficiently and cost-effectively by using their internal processes to address issues before resorting to litigation.
Read MoreFrancesca Muscutt and Millie Bailey of DAC Beachcroft look at the landmark decision, James Churchill v Merthyr Tydfil County Borough Council, where the Court of Appeal has ruled that the courts can stay proceedings and order parties to engage in Alternative Dispute Resolution (ADR), even where one or both parties have expressed an unwillingness to engage in the process.
The benefits of ADR have long been recognised. It is an efficient mechanism for resolving disputes quickly, privately and usually far more cheaply than taking a case to trial. The Pre-action Protocol for Professional Negligence (which covers claims against accountants and auditors) requires the parties to consider ADR before commencing court proceedings. The Court of Appeal decision in Churchill goes further by underscoring the importance of ADR even once proceedings are underway. The courts have the power to stay the proceedings and compel the parties to engage in ADR and there is an expectation this power will be exercised.
Read MoreRebecca Attree of IPOS Mediation explains how a "human conscious" organisation fosters awareness of its societal role, prioritising ethics, culture, and stakeholder well-being over hierarchical control. By integrating self-management, wholeness, and evolutionary purpose, such organisations can enhance workplace harmony, resolve conflicts more effectively through mediation, and ultimately drive both human and business success.
https://mediate.co.uk/blog/building-human-conscious-organisations/
Read MoreThe Court of Appeal in Churchill v Merthyr Tydfil County Borough Council held that courts can lawfully order parties to engage in alternative dispute resolution (ADR), as long as it does not infringe on their right to a fair trial and is a proportionate means of achieving a legitimate aim. While the decision did not mandate ADR in this case, it marks a significant shift by affirming judicial discretion to require ADR, potentially leading to more efficient and cost-effective dispute resolution.
Read MorePeter Allchorne and Emma Fuller of DAC Beachcroft, look into the UK case of Churchill v Merthyr Tydfil County Borough Council, where the Court of Appeal ruled that courts can order parties to engage in alternative dispute resolution (ADR) processes, provided it does not impair their right to a judicial hearing and is proportionate. This decision opens the door for the courts to mandate ADR before trial, potentially leading to cost implications and further clarification on what constitutes adequate engagement with the process.
Read MoreMia Levi of the International Institute for Conflict Prevention and Resolution ("CPR") offers suggestions as to how parties can assess whether they should mediate, referring to the CPR's ADR Suitability Guide, and when they should mediate
https://www.mediate.com/articles/levi-commercial-disputes.cfm#bio
Read MoreDavid A Evans of IPOS Mediation explains how boardroom conflicts often arise from delayed communication and unresolved tensions, making early intervention crucial for maintaining a healthy work environment. An effective Chair plays a key role in fostering open debate, addressing conflicts proactively, and ensuring Board members uphold integrity and courage to act in the organization’s best interests.
https://my.newzapp.co.uk/t/view/1537946610/121956528
Read MoreHenrietta Jackson-Stops explores how the UK’s Civil Mediation Council supports the push for compulsory mediation, emphasising its high success rate and significant cost and time savings for litigants and the wider justice system. However, it raises concerns about the expectation that such mediation should be free or low-cost, arguing that investing in professional, regulated mediation is justified by its substantial long-term benefits.
Read MoreSukhi Kaler and Liz Williams of CMS Law-Now look at how the United Kingdom’s Civil Justice Council (CJC) has concluded that mandatory alternative dispute resolution (ADR) is legally compatible with the European Convention on Human Rights and could positively influence dispute resolution culture. While further work is needed before implementation, the report suggests that compulsory ADR—if carefully designed—could improve case management without infringing on access to the courts.
https://cms-lawnow.com/en/ealerts/2021/07/civil-justice-council-supports-mandatory-adr
Read MoreTrust, Wills and Probate Mediations are among the most challenging of cases. The intense mix of emotional, legal and financial issues can make achieving sustainable outcomes incredibly difficult.
To help lawyers who mediate in this sector, CEDR has put together a practitioner-led guide that offers practical advice on how to manage and prepare for your mediations.
https://indd.adobe.com/view/1d4785a1-87af-4ee6-b11e-0f34e65652c6
Read MoreHenrietta Jackson-Stops of IPOS Mediation explores how the UK case of Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd highlights the significant disparity between the damages claimed (£3.7m) and awarded (£2,000), along with the high interim costs imposed on the Claimant (£500,000). The judgment also raises key questions about the role of blind bidding as a form of ADR, distinguishing it from mediation and questioning whether it fulfills parties' obligations to attempt settlement before trial.
https://mediate.co.uk/blog/case-law-update-beattie-v-canham/
Read MoreJon Lang of IPOS Mediation looks at how the case of Kumar v L.B. of Hillingdon highlights the potential issues of compulsory mediation, particularly in cases involving significant power imbalances, such as disputes between parents and local authorities over special educational needs. The judgment emphasises the importance of ensuring that parties have the necessary support, such as legal representation, to prevent unfair outcomes and stresses the need for safeguards if mediation becomes compulsory.
https://my.newzapp.co.uk/t/view/1487606041/121956528/
Read MoreExamples of the High Court's occasional practice of accommodating a mediation window in the trial timetable. See my August 2022 article in the New Zealand Law Journal for analysis.
Waterco (NZ) Ltd v Simpson [2012] NZHC 2361
Read MoreExamples of the High Court's occasional practice of accommodating a mediation window in the trial timetable. See my August 2022 article in the New Zealand Law Journal for analysis.
Braid Motors Ltd v Scott (2001) 15 PRNZ 508 (HC)
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