Wilson et al: English Legal System Directions 
Practical examples
Test bankWilson et al: English Legal System Directions
Alternative dispute resolution
Question
The Court of Appeal in Dunnett v Railtrack (2002) had effectively made mediation compulsory in civil litigation. Thankfully, the same court on Halsey v Milton Keynes NHS Trust (2004) realised that, although mediation had several obvious advantages compared to both litigation and arbitration, it was going too far to impose it on unwilling litigants.
Discuss.
Answer Guidance
This question requires an understanding of mediation, arbitration and litigation, and the advantages that the former enjoy over the latter. Moderate answers will involve students being able to distinguish mediation and arbitration, on one hand, from litigation, on the other; but better answers will be able to distinguish mediation from arbitration, which requires a more subtle appreciation of these different forms of ADR.
Answers should explain what litigation entails – the resolution of legal disputes through the civil courts, with a judge imposing a judgment. Answers should also explain mediation – a process whereby parties with a dispute attempt to negotiate a mutually acceptable compromise solution with the assistance of a neutral third party, the mediator. Answers should also explain arbitration – a process where a dispute is resolved by an arbitrator, a neutral third party with expertise of the subject area of the dispute.
Answers should discuss the inherent problems associated with litigation and, to a lesser extent, arbitration. The main ones are cost, time, formality, inaccessibility, inflexibility, the adversarial process, the limited range of options available to the judge / arbitrator, and so on. Answers should also discuss the advantages of mediation although to an extent these are simply the converse of the already-mentioned issues so students should be careful to avoid pointless repetition. However, it is important to mention the informality and flexibility of mediation and its confidentiality (although this is also a feature of arbitration).
Answers should discuss the judgment in Dunnett where the Court of Appeal warned of "uncomfortable costs consequences" for litigants who failed to take up an offer of mediation. This was designed to encourage unwilling litigants into mediation as a means of keeping more disputes out of court and reducing overall costs, and has been endorsed in other cases (e.g. Leicester Circuits v Coates Brothers).
Answers should also discuss the judgment in Halsey, which restricted Dunnett to cases where it was proven to be unreasonable to have refused to mediate. This acknowledged that there may be circumstances in which a proposal to mediate can be rejected with impunity – perhaps where the party making the proposal has a very weak case and/or is seen to be a vexatious litigant (as in Hurst v Leeming). Instead, the court decided that mediation should be strongly encouraged, but not made mandatory.
Answers should discuss the merits/demerits of making mediation compulsory and reach a position on whether the Court of Appeal in Dunnett went "too far" and hence whether the same court was right in Halsey to restrict the scope of Dunnett. Answers could differ here but students should be aware that the Court of Appeal in Halsey viewed the 'uncomfortable costs consequences' rule as going against the voluntary nature of mediation, risking the imposition of barriers between the parties and the mediator and also potentially infringing the human rights of the litigants to a 'fair trial'.
Conclusion: there are a number of obvious advantages that mediation enjoys over litigation, and a (smaller) number of advantages that mediation enjoys over arbitration. Despite that, making mediation compulsory creates problems and even potentially infringes the human rights of the litigants. Therefore, courts should strongly encourage mediation, without making it compulsory, while retaining the power to impose costs penalties on litigants who "unreasonably" refuse to even enter into mediation.
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