Post-Covid mediation – no way out now?

With the civil Courts operating at around 40% capacity and a predicted storm of Covid-related disputes brewing, forms of alternative dispute resolution (ADR) are likely to be strongly encouraged by the Courts to help ease the ever increasing backlog of cases.

There are only very limited circumstances whereby parties to a dispute can refuse to consider any form of ADR without cost consequences, as set out in the case of Halsey v Milton Keynes General NHS Trust[1] and more recent cases.  In the Preface to the White Book (2020), Sir Geoffrey Vos states “As a matter of principle, it is difficult to see how, in the light of Lomax[2], Halsey can continue to be relied upon as justifying a rejection by the court of judge-led mediation carried out as part of the case management process. There is an increasing emphasis on ADR generally, during 2020 there may well be significant developments in the CPR’s approach to settlement.”[3]

More recently, the Courts have considered whether parties are ever justified in refusing ADR.

Firstly, in Kelly [2020][1], the Court accepted the Defendant’s refusal to mediate because the Claimant had refused to abide by an agreement reached at the end of two prior mediations.

Secondly, in DSN [2020][2], the Court decided that no defence, however strong, by itself is a sufficient reason to wholly refuse to engage in any form of ADR, and that such a stubborn refusal in and of itself is likely to attract cost sanctions.  This contrasts with the commonly cited reason to refuse to mediate: the lack of a “reasonable prospect of success” excuse. As such it indicates a change in direction by the courts towards yet more encouragement to mediate.

Since the onset of Covid in early 2020, thanks to advances in cloud-conferencing software, mediators have continued to mediate disputes online or with social distancing in place.

Michel Kallipetis QC, an experienced mediator with Independent Mediators notes, “Our positive experience has been that the percentage of cases which have been resolved by remote mediation is not less than that we experienced in previous years from traditional mediations”[3]. Martin Plowman, of Mediation 1^st, considers that he is “able to read a person online pretty much as well as I can across a conference table.  Sometimes better.”[4]

David Miles, Consultant at Blake Morgan and member of the Legal 500 Hall of Fame of mediators commented:

Mediation in Covid times and beyond

In the age of proportionality and reasonableness, the cost savings offered by remote mediation provide a compelling case for the Courts to adopt an approach which strongly encourages parties to consider participating in a form of remote ADR to resolve their disputes notwithstanding Covid restrictions.

Whether or not Covid results in a tsunami of new litigation, it seems almost certain that a lasting effect of Covid-19 on our justice system will be a strong encouragement by the Courts for parties to mediate, and for remote/online mediation to be a popular and cost effective option for the foreseeable future.

Contact a member of our Litigation & Dispute Resolution team to find out more about alternative dispute resolution.

This article has been co-written by Nicola Diggle and David Miles.

Appendix

[1] [2004] EWCA Civ 576

[2] Lomax v Lomax [2019] EWCA Civ 1467

[3] White Book 2020, Volume 2, s.14 Alternative Dispute Resolution, B. – ADR in the Context of the CPR 1. – Case Management (f) – Judicial speeches—ADR case management post Halsey—power to direct ADR (14-9.2+)

[4] Kelly v Kelly [2020] 3 WLUK 94

[5] DSN v. Blackpool Football Club Ltd [2020] EWHC 670 (QB)

[6]http://www.independentmediators.co.uk/wp-content/uploads/2020/06/Is-this-the-time-for-a-new-Halsey-Independent-Mediators.pdf – page 2

[7] https://www.mediation1st.co.uk/?p=the.poor.relation.of.mediation