All I want for Christmas is Mediation

Blog post by Siobhan Cullen

Despite significant developments in the law throughout the years, the role of the legal profession has remained fundamentally the same. The reality is that legal disputes will continue to occur in many shapes and forms, resulting in litigation at which point legal advice and advocacy skills are required. It has been suggested by some critics that the fundamentals of the legal system and legal profession will never change, however, this is no longer strictly true, as mediation gathers pace as a significant form of Alternative Dispute Resolution (ADR).

Mind the Gap

The increasingly limited availability of legal aid has created gaps in the system resulting in many potential litigants being unable to avail of legal advice and assistance in relation to potential breaches of their legal rights.  Fortunately, the Law Centres ( The Law Centres Network) have made huge strides to fill this gap and the admirable pro bono work being undertaken by law schools and the legal profession (National Pro Bono Centre LawWorks | The Solicitors Pro Bono Group ) is testament to the fact that there is a significant need for free legal advice which is likely to increase over time.

Despite the continuous commitment to pro bono work by law schools and clinics such as Open Justice who have developed numerous projects and clinics with partner organisations, there remains a significant amount of unmet legal need.  As the cost of litigation increases and legal aid becomes more limited, one potential solution is to consider mediation as the viable alternative to litigation.

Christmas Comes Early

In recent weeks, there have been significant advances in relation to mediation, meaning Christmas comes early for both lawyers with an interest in ADR and mediators as well as parties to conflict who would prefer a faster, cheaper and less conflictual settlement.

Mediation has grown in popularity in recent years, especially since online mediation became available in the post-pandemic era, and has been the subject of much scrutiny and debate in recent months. This is as a result of a significant Court of Appeal case which involved interventions by most legal professional bodies, including the Law Society Home | The Law Society and Bar Council Homepage (barcouncil.org.uk), as well as mediation bodies including CEDR (Centre for Effective Dispute Resolution) Training & Consulting - CEDR, CMC ( Civil Mediation Council) Civil Mediation Council - The No. 1 information resource for civil, commercial and workplace mediation in England and Wales and CIArb ( Chartered Institute of Arbitrators) CIArb - Google Search

Ground-breaking Ruling

The Court of Appeal judgment in Churchill v Merthyr Tydfil County Borough Council  [2023] EWCA Civ 1416 HELD that the precedent in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 which had prevailed for twenty years, preventing the courts from compelling the parties to consider mediation as this was a breach of the right to a fair trial, was no longer appropriate in all cases.

This ruling enables the courts to, where appropriate, pause the proceedings to enable mediation even if one party objects, hence rendering mediation an essential new aspect of the litigation landscape. This has been applauded as a positive change by most relevant professional bodies and it is likely to have a significant impact on litigation, leading to early settlements and shorter waiting lists which will alleviate the burden on the court system.

Proposed Legislation

This recent judgment is not the only significant development in relation to mediation since in October 2023 the Ministry for Justice announced that mediation will shortly become mandatory for small claims up to €10,000, failing which claimants will have their claims struck out or face costs awards against them. The plan is to expand the small claims mediation service, which is conducted by telephone, which will apply to 80% of small claims, creating a predicted 5,000 free sitting days a year for the courts which will have a significant impact on delays Compulsory mediation for small claims of up to… | The Sheriffs Office

Benefits of Mediation

There is a strong logic in favour of mediation in that it will reduce the number of hearings, delays, and legal costs. Moreover, mediation also creates a less stressful and more manageable process for all parties to a dispute as opposed to the win-lose adversarial approach which is a necessary evil within litigation.

Mediation is clearly the way forward and will doubtless become mandatory in all civil actions in due course which will have a transformative effect on the law, legal system and legal profession.

On the Santa List

Fortunately, Open Justice has been ahead of the game, delivering a Mediation Project for several years now with law students undertaking simulated mediation in the online environment, developing skills which are not only beneficial life skills but also advantageous within the future legal landscape. A Mediation training course would be a great gift from Santa in the current climate since this is most definitely the way forward in litigation and dispute resolution.