As of today, the courts of England and Wales can order parties to mediate once more.

After a twenty year hiatus, the courts in England and Wales can, once more, lawfully order parties to court proceedings to engage in a non-court based dispute resolution process, such as mediation.

In their judgement this afternoon, in the case of CHURCHILL V. MERTHYR TYDFIL COUNTY BOROUGH COUNCIL Appeal No: CA-2022-001778, The Court of Appeal (Baroness Carr, Lady Chief Justice, Sir Geoffrey Vos, Master of the Rolls, and Lord Justice Birss),  determined that Dyson LJ’s statement in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002 (Halsey) namely “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court” is obiter dicta and therefore not legally binding.

The Court of Appeal (in a judgment delivered by the Master of the Rolls) decided that:

1. The passages from Dyson LJ’s judgment in Halsey, relied upon by the judge, were not part of the essential reasoning in that case and had not bound the judge to dismiss the Council’s application for a stay of these proceedings.
2. The court could lawfully stay proceedings for, or order the parties to engage in, a non-court-based dispute resolution process provided that the order made did not impair the very essence of the claimant’s right to proceed to a judicial hearing and was proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
3. The court would not lay down fixed principles as to what would be relevant to determining whether proceedings should be stayed or whether to order the parties to engage in a non-court-based dispute resolution process.
4. In the circumstances of this case, a stay of the proceedings would not now be granted, but the parties ought to consider whether they could agree to a temporary stay for mediation or some other form of non-court-based adjudication.

With the Court of Appeal’s determination today that Dyson LJ’s comments in 2004 in Halsey were only incidental remarks, the twenty-year-old spectre of Halsey has been laid to rest. This was a spectre that thwarted the development and progress of alternative dispute resolution as a highly effective adjunct to judicial proceedings for the first two decades of this century.