Sir Alan Ward on mediation

Sir Alan Ward, recently retired from the Court of Appeal and now Chair of the Civil Mediation Council (CMC) has voiced frustrations with the present rule that permits a party to refuse to mediate in civil cases, even when the judge and other party thinks it appropriate.

In a press release given by the CMC earlier this year, Sir Alan said:-

‘I am utterly convinced mediation has an increasing part to play in providing civil justice. The CMC is at the epicenter of promoting all forms of mediation and maintaining the standards necessary to ensure its success. It is therefore a great honour to succeed Sir Henry Brooke, Lord Slynn and Sir Brian Neill at this crucial time.’

He wants a judge to compel the parties to mediate or face their action or defence being struck out.   And he has used the unusual medium of his judgment in the Court of Appeal to make this request: Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 (27 March 2013) 

The very interesting judgment can be found at:

The case concerned two litigants in person and a dispute relating to a share sale agreement. Sir Alan had the following to say regarding the strain that unrepresented litigants can place on the Courts (para 2 of the Judgment) :-

‘It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.’

At paragraph 3 of the Judgment in Wright, Sir Alan goes on to suggest that it may be time to review the rule formulated in Halsey v Milton Keynes General NMS Trust [2004] EWCA Civ 576, a rule that he contributed to, that ‘to oblige unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstructions on their right to access to the court.’

In quite a colourful paragraph (paragraph 3) Sir Alan summarises the issue of parties refusing to mediate by saying ‘You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable.’

In a unanimous Judgment, Lord Justice Hughes also remarked that efforts to save money of legal representation can end up costing the tax payer more in any event (final paragraph): ‘I also agree that the case is a good example of the way in which efforts to save money on legal representation can often end up costing everyone, and in particular the public, more rather than less.’

In light of the Jackson reforms, mediation is increasingly becoming an integral component of modern civil litigation and so the case of Wright raises the question – ‘who will be the bold judge to Order mediation?, who will be the bold advocate to request such an Order?’.

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