Mediation: adjourn for mediation

It is not surprising that judges are making ever greater attempts to narrow the gap between maintaining mediation processes as voluntary, and pressurising parties – as far as the common law will permit them – to force the reluctant horse to mediation water and to make him or her drink.

In Bradley v Heslin [2014] EWHC 3276 (Ch) Norris J made clear his view that mediation attempts must be made all but compulsory (I am grateful to http://civillitigationbrief.wordpress.com/2014/10/12/3402/ for alerting me to this case and the ideas which stem from it). Could such an approach work in family proceedings? Norris J explained his view of the mediation aspect – especially in neighbour disputes – as follows:

[24] I think it is no longer enough to leave the parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken. In boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves. The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.

He was dealing with a dispute over a pair of gates. The facts do not matter for present purposes. His judgment starts:

[1] Rather to my surprise I find myself trying a case about a pair of gates in Formby: surprise on at least two counts. First, that anyone should pursue a neighbour dispute to trial, where even the victor is not a winner (given the blight which a contested case casts over the future of neighbourly relations and upon the price achievable in any future sale of the property). Second, that the case should have been pursued in the High Court over 3 days. It is not that such cases are somehow beneath the consideration of the Court. They often raise points of novelty and difficulty and are undoubtedly important to the parties and ultimately legal rights (if insisted upon) must be determined. But at what financial and community cost?

At para [21] he recorded that:

Sensible neighbours would have sat round a table and worked out either a regime for closing the gates at agreed hours (the one party suffering a diminution in security and the other an increase in inconvenience) or the installation of remotely operated electric gates (which might have cost £5000).

Stay on proceedings for non-court dispute resolution

For neighbour and other such disputes where ‘costs of mediation would not be disproportionate, a district judge was to be entitled to order a stay on proceedings in the following terms (taken from his para [23]):

  • Stay of proceedings for (say) 2 months (or other appropriate period); and in that time
  • The parties must take all reasonable steps to conduct that mediation (whatever the parties might say about their willingness to engage in the process)
  • The fees and costs of any successful mediation should be borne in such proportions as the parties agree with the mediator; or in default of agreement they be borne equally;
  • The fees and costs of any unsuccessful mediation should form part of the costs of the action; and
  • Directions for the speedy further conduct of the case only from the expiration of the period in (1).

Norris J continued by expressing the view, in conclusion to para [24]: ‘…. for my own part (recognising that certainly others may differ) I think that such a case management decision would be difficult to challenge on appeal.’

Family proceedings: draft non-court dispute resolution directions

A draft ADR order appears in The Admiralty and Courts Guide (http://www.justice.gov.uk/downloads/courts/admiralitycomm/admiralty-and-commercial-courts-guide.pdf ) at Appendix 7 on page 111.

For (say) matrimonial financial remedy proceedings this could be adapted to provide as follows:

  1. On or before [*] the parties shall exchange the names of 3 suitable family mediators who are available to conduct non-court dispute resolution procedures in this case.
  2. On or before [*] the parties shall in good faith endeavour to agree a neutral individual or panel from the lists so exchanged and provided.
  3. Failing such agreement by [*] the [FDA/FDR appointment] shall be restored to enable
    the Court to facilitate agreement on a neutral family mediator
  4. The parties shall take such serious steps as they may be advised to resolve their disputes by non-court dispute resolution procedures before the family mediator no later than [*].
  5. If the case is not finally settled, the parties shall inform the Court by letter prior to [a date x days from the date in para (1)] what steps towards non-court dispute resolution have been taken and (without prejudice to matters of privilege) why such steps have failed.
  6. If the parties have failed to initiate non-court dispute resolution procedures the [FDA/FDR appointment] is to be restored for further consideration of the case.
  7. [Directions for (1) any necessary expert (eg valuation) evidence to assist the non-court dispute resolution process (2) directions for disclosure and exchange of information (if any needed) (3) other necessary directions [nothing complex at this stage]
  8. The fees and costs of any successful mediation should be borne in such proportions as the parties agree with the mediator; or in default of agreement they be borne equally. The costs of any unsuccessful mediation should form part of the costs of the financial remedy application.

In principle and in the light of the comments of Norris J above – which, from a High Court judge, though obiter, must be of influence in the family court – could such an approach work for family cases (especially financial remedy proceedings)?




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