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Mediation is not a competing discipline, says Kelly Stricklin-Coutinho, but a growing part of a barrister’s practice following the judgment in Churchill
In November 2023 the Court of Appeal, sitting in special constitution of the Lady Chief Justice, the Master of the Rolls and Lord Justice Birss, Deputy Head of Civil Justice, gave judgment in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. In this significant case the court dealt with two key questions:
The facts of the case concerned a property owned by Mr Churchill and council-owned land adjacent to it. Mr Churchill claimed that Japanese knotweed from the council-owned land had encroached on his property, causing damage and reducing its value. Following a letter of claim, the council responded to ask why Mr Churchill had not used its corporate complaints procedure, noting that if Mr Churchill were to issue his claim without doing so, the council would apply to the court for a stay and for costs. Mr Churchill issued his claim, and the council issued its application.
The judge dismissed the stay application on the basis he considered himself to be bound by the statement of Dyson LJ in Halsey v Milton Keynes General NHS Trust [2024] EWCA Civ 576 to the effect that:
‘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.’
Permission to appeal was granted, and the case was referred to the Court of Appeal.
The Court of Appeal considered the following questions:
1. Was the judge right to think that Halsey bound him to dismiss the council’s application for a stay of proceedings?
The Court of Appeal held that the passage from Halsey was obiter, because the question the court was asked in Halsey was essentially a costs question as to how the court decided whether a refusal to mediate was unreasonable, rather than a ruling on whether the court had power to order the parties to mediate. The judge was not bound.
2. Can the court lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process?
The Court of Appeal held that a court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process. That power must be exercised so that it does not ‘impair the very essence’ of the claimant’s article 6 rights, is in pursuit of a legitimate aim, and is exercised in such a way that is proportionate to achieving that legitimate aim.
3. How should the court decide whether to stay the proceedings for, or order, the parties to engage in a non-court-based dispute resolution process?
The Court of Appeal held that whether the court should make such an order is a matter of the court’s discretion to which many factors will be relevant. A number of factors had been identified by the parties, in addition to those referred to in Halsey. However, the court declined to lay down fixed principles as to what will be relevant, noting that it would be undesirable to provide a checklist or score sheet for judges to operate.
4. Should the judge have granted the council’s application to stay these proceedings to allow Mr Churchill to pursue a complaint under the council’s internal complaints procedure?
The court noted that there would be little point in staying the claim at that stage, since nothing would be gained if a one-month stay were granted.
Very shortly after the Churchill judgment, the CPRC consulted on changes to the CPR which were intended to give effect to the judgment. The changes came into force on 1 October 2024 by way of the Civil Procedure (Amendment No.3) Rules SI 2024 No. 839. In summary the changes are:
‘whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in the alternative dispute resolution proposed by another party’.
It goes without saying that these are fundamental changes to the CPR, with real impact. The power to order a non-court-based dispute resolution process (whether it is mediation, ENE or some other form) being in the Overriding Objective means that parties must consider ADR at all stages of their dispute. That there is a costs sanction for failure to do so means that ADR cannot be ignored when considering litigation strategy on any case governed by the CPR.
As to how the courts will apply Churchill and the changes, to the CPR, Churchill requires the court to weigh up interests and make an assessment based on proportionality, and there are already instances in which judges have ordered the parties to mediate. There have also been published judgments as to costs. Those include Northamber Plc v Genee World Ltd [2024] EWCA Civ 428 which post-dated Churchill and pre-dated the changes to the CPR, where the defendants were held to have unreasonably refused a (half-hearted) offer to mediate. The cost sanction applied increased by an additional 5% a previous order that a defendant pay 70% of the claimant’s costs so that the defendant would be liable for 75% of the claimant’s costs.
In Elphicke v Times Media Ltd [2024] EWHC 2595 (KB), the judge included in her order (of her own motion) that the parties must engage in ADR as to the costs claimed, and that a party deciding not to engage must be able to justify their non-engagement to the costs judge, with reference to the provisions of CPR 44.11 and the developing common law since Churchill.
Automatic Referral to Mediation for money claims valued up to £10,000 has started by way of a pilot scheme. A compulsory one-hour mediation appointment is provided by HM Courts and Tribunals Service, which is free to the parties. The parties must take part before the claim proceeds to court if the case does not settle. Further developments in automatic referral to mediation have not been ruled out by the Ministry of Justice.
The OPRC has powers to establish rules for online dispute resolution, both court based and pre-action. The work of the OPRC is likely to be significant in this area too.
Experienced mediators will know that barristers perform an invaluable role in mediation. Barristers can add value for their clients in a number of ways. A key skill barristers use effectively in mediation relates to litigation risk, specifically:
Barristers are particularly well placed to perform this role, because of their independence and court experience.
If asked to do so, barristers can contribute by speaking with their counterpart, which may be productive, depending on the dynamics of the case. This is a technique familiar to those who do JSMs.
While solicitors often draft settlement agreements, this is another area where barristers can add value.
Less helpful is the approach of using the mediation to focus only on re-arguing the legal merits, since mediation is focused on a) coming to a workable solution, taking into account all the circumstances (including non-legal ones); and b) is not the venue for legal arguments – that is for the court.
In cases where mediation doesn’t lead to a settlement, having participated can be very helpful. Barristers may have the opportunity to see witnesses they might cross-examine in due course, and will see how their own witnesses handle in a pressured environment. Mediation also may allow an opportunity to test one’s arguments and certainly to learn more about the other party’s case. Parties usually take stock after a mediation which has not settled on the day, and CEDR’s most recent audit identified that for civil mediations, 72% settle on the day, and a further 20% settle shortly after the mediation day.
Mediation is not a competing discipline to a barrister’s practice. It is one of many methods to resolve disputes which can be a tool for barristers in assisting their clients. It offers flexibility, speed and costs savings that are less easily found in litigation, and can often help to narrow issues even if some aspect of litigation cannot be avoided.
Kelly Stricklin-Coutinho is a barrister and mediator at 39 Essex Chambers. She is a member of CEDR’s Faculty of Trainers and Panel of Mediators. She is Chair of the Civil Mediation Council. She is also a legally qualified member of the Civil Procedure Rules Committee from 12 July 2025.
In November 2023 the Court of Appeal, sitting in special constitution of the Lady Chief Justice, the Master of the Rolls and Lord Justice Birss, Deputy Head of Civil Justice, gave judgment in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. In this significant case the court dealt with two key questions:
The facts of the case concerned a property owned by Mr Churchill and council-owned land adjacent to it. Mr Churchill claimed that Japanese knotweed from the council-owned land had encroached on his property, causing damage and reducing its value. Following a letter of claim, the council responded to ask why Mr Churchill had not used its corporate complaints procedure, noting that if Mr Churchill were to issue his claim without doing so, the council would apply to the court for a stay and for costs. Mr Churchill issued his claim, and the council issued its application.
The judge dismissed the stay application on the basis he considered himself to be bound by the statement of Dyson LJ in Halsey v Milton Keynes General NHS Trust [2024] EWCA Civ 576 to the effect that:
‘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.’
Permission to appeal was granted, and the case was referred to the Court of Appeal.
The Court of Appeal considered the following questions:
1. Was the judge right to think that Halsey bound him to dismiss the council’s application for a stay of proceedings?
The Court of Appeal held that the passage from Halsey was obiter, because the question the court was asked in Halsey was essentially a costs question as to how the court decided whether a refusal to mediate was unreasonable, rather than a ruling on whether the court had power to order the parties to mediate. The judge was not bound.
2. Can the court lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process?
The Court of Appeal held that a court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process. That power must be exercised so that it does not ‘impair the very essence’ of the claimant’s article 6 rights, is in pursuit of a legitimate aim, and is exercised in such a way that is proportionate to achieving that legitimate aim.
3. How should the court decide whether to stay the proceedings for, or order, the parties to engage in a non-court-based dispute resolution process?
The Court of Appeal held that whether the court should make such an order is a matter of the court’s discretion to which many factors will be relevant. A number of factors had been identified by the parties, in addition to those referred to in Halsey. However, the court declined to lay down fixed principles as to what will be relevant, noting that it would be undesirable to provide a checklist or score sheet for judges to operate.
4. Should the judge have granted the council’s application to stay these proceedings to allow Mr Churchill to pursue a complaint under the council’s internal complaints procedure?
The court noted that there would be little point in staying the claim at that stage, since nothing would be gained if a one-month stay were granted.
Very shortly after the Churchill judgment, the CPRC consulted on changes to the CPR which were intended to give effect to the judgment. The changes came into force on 1 October 2024 by way of the Civil Procedure (Amendment No.3) Rules SI 2024 No. 839. In summary the changes are:
‘whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in the alternative dispute resolution proposed by another party’.
It goes without saying that these are fundamental changes to the CPR, with real impact. The power to order a non-court-based dispute resolution process (whether it is mediation, ENE or some other form) being in the Overriding Objective means that parties must consider ADR at all stages of their dispute. That there is a costs sanction for failure to do so means that ADR cannot be ignored when considering litigation strategy on any case governed by the CPR.
As to how the courts will apply Churchill and the changes, to the CPR, Churchill requires the court to weigh up interests and make an assessment based on proportionality, and there are already instances in which judges have ordered the parties to mediate. There have also been published judgments as to costs. Those include Northamber Plc v Genee World Ltd [2024] EWCA Civ 428 which post-dated Churchill and pre-dated the changes to the CPR, where the defendants were held to have unreasonably refused a (half-hearted) offer to mediate. The cost sanction applied increased by an additional 5% a previous order that a defendant pay 70% of the claimant’s costs so that the defendant would be liable for 75% of the claimant’s costs.
In Elphicke v Times Media Ltd [2024] EWHC 2595 (KB), the judge included in her order (of her own motion) that the parties must engage in ADR as to the costs claimed, and that a party deciding not to engage must be able to justify their non-engagement to the costs judge, with reference to the provisions of CPR 44.11 and the developing common law since Churchill.
Automatic Referral to Mediation for money claims valued up to £10,000 has started by way of a pilot scheme. A compulsory one-hour mediation appointment is provided by HM Courts and Tribunals Service, which is free to the parties. The parties must take part before the claim proceeds to court if the case does not settle. Further developments in automatic referral to mediation have not been ruled out by the Ministry of Justice.
The OPRC has powers to establish rules for online dispute resolution, both court based and pre-action. The work of the OPRC is likely to be significant in this area too.
Experienced mediators will know that barristers perform an invaluable role in mediation. Barristers can add value for their clients in a number of ways. A key skill barristers use effectively in mediation relates to litigation risk, specifically:
Barristers are particularly well placed to perform this role, because of their independence and court experience.
If asked to do so, barristers can contribute by speaking with their counterpart, which may be productive, depending on the dynamics of the case. This is a technique familiar to those who do JSMs.
While solicitors often draft settlement agreements, this is another area where barristers can add value.
Less helpful is the approach of using the mediation to focus only on re-arguing the legal merits, since mediation is focused on a) coming to a workable solution, taking into account all the circumstances (including non-legal ones); and b) is not the venue for legal arguments – that is for the court.
In cases where mediation doesn’t lead to a settlement, having participated can be very helpful. Barristers may have the opportunity to see witnesses they might cross-examine in due course, and will see how their own witnesses handle in a pressured environment. Mediation also may allow an opportunity to test one’s arguments and certainly to learn more about the other party’s case. Parties usually take stock after a mediation which has not settled on the day, and CEDR’s most recent audit identified that for civil mediations, 72% settle on the day, and a further 20% settle shortly after the mediation day.
Mediation is not a competing discipline to a barrister’s practice. It is one of many methods to resolve disputes which can be a tool for barristers in assisting their clients. It offers flexibility, speed and costs savings that are less easily found in litigation, and can often help to narrow issues even if some aspect of litigation cannot be avoided.
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