Since I started out on my work as a mediator four years ago, I have come to a firm view that the success so often achieved by parties at mediation is due in large part to the fact that they have chosen to go to mediation, and are therefore willing participants in the search for an amicable settlement, and share a mutual desire to avoid going to court. Voluntariness is in my view at the heart of the process.

Those who are in favour of imposing a mandatory mediation on parties as a precondition to litigating their dispute – a view not as prevalent in this jurisdiction as in the United Kingdom perhaps – do not share my view on voluntarism, or at least not to the same extent. They may feel that while the willingness of parties to go to mediation is a good start, it is by no means as essential to the process as those in favour of it may think.

The debate between voluntary mediation and mandatory mediation livened up over the past year, particularly in the UK because of the appeal in Churchill v. Merthyr Tydfil County Borough Council [2023] EWCA Civ. 1416. The judgment of Vos M.R in Churchill has put an end to the widely held view in England and Wales that the court has no power to force parties to attempt a mediated settlement before having their day in court. That view had been widespread for almost 20 years following some comments by Lord Justice Dyson in his judgment in the Court of Appeal in 2004 in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ. 576 where he stated that to force unwilling parties to go to mediation would be to impose an unacceptable obstruction on their right of access to the court, and that this would be in breach of Article 6 of the European Convention on Human Rights. Dyson L.J’s comments have now ben relegated by Vos M.R. to the status of ‘obiter dicta’ and therefore not binding on the Court of Appeal for its decision in Churchill.

The current position in England and Wales therefore is as stated in Churchill, namely that the Court has power to make an order directing the parties to engage in some form of ADR such as mediation, and may stay existing proceedings so that such a process can be undertaken where to do so does not impair the parties’ right of access to the court, and is proportionate to the overall objective of settling the dispute expeditiously, fairly and at a reasonable cost.

As in Ireland, the English courts have been generally supportive of the idea that a court hearing should be a last resort, and that parties should be encouraged to attempt non-court settlement through, for example, mediation. Following Halsey the courts in England and Wales tended to use their discretion in relation to costs as an encouragement to the parties to accept an invitation (either from the court or from the other side) to go to mediation. The courts developed certain principles by which a court might decide at the end of the case whether, and to what extent, the successful party in the litigation should be penalised as to costs because they unreasonably refused an invitation to go to mediation.

Much more can be written about the judgment in Churchill, and its beneficial effect on the encouragement of the courts in England and Wales in the direction of mediation, and whether it is a soft move in that jurisdiction towards mediation being directed by judges in many more cases than presently occurs. With the mounting pressures on court resources in terms of numbers of judges and court time, and the increasing amount of court time required to hear complex high value cases, it is understandable that judges should want to encourage parties to explore other available possibilities for resolving their differences. However, this short piece is not the place to deal with these matters more comprehensively.

However, it is worth considering whether the decision in Churchill across the water has any relevance for the administration of justice in Ireland. It is of course not binding in any way in Ireland. But as with many other judgments from other common law jurisdictions which are frequently urged in support of arguments in cases before the Irish courts, some may seek to derive some persuasive effect from Churchill if seeking an order from the High Court to direct the opposite party to attend a mediation in order to explore a real possibility of finding an amicable resolution of the dispute.

Irish courts in appropriate cases have invited the parties to consider mediation. Often when that occurs, the parties will accept that judicial ‘nod’ and will engage in a mediation process, and later return to the court and indicate success or failure. But there has been no question of parties having been ordered to attempt mediation. However, an unreasonable refusal by one party to accept such an invitation or suggestion may well be considered as part of the court’s exercise of discretion in relation to costs after the court has given judgment. Factors that may influence the judge’s decision as to whether a refusal was unreasonable will likely involve the following as identified by Dyson L.J. in Halsey. : (a) the nature of the dispute; (b) the merits of the case; (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success. Dyson L.J. went on to state that for the purposes of a departure from the general rule that costs should follow the event, the burden of proof was upon the unsuccessful party to show that the successful party had acted unreasonably.

 

Section 2 – Mediation Act, 2017:

An important factor in considering whether Irish courts could, without specific statutory authority, order parties to engage in mediation before getting to trial, is that the definition of ‘mediation’ in s. 2 of the Mediation Act, 2017 states that it is among other things “ a voluntary process”. That statutory definition is absent in England and Wales, and therefore the Court of Appeal was not constrained by any statutory definition of mediation when considering whether it was within the court’s power to direct mediation. The statutory definition is the 2017 Act is the following:

“… a confidential, facilitative and voluntary process in which the parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute”. [Emphasis provided]

A suggestion or invitation by a court does not trammel upon this definition since the decision by the parties to accept such an invitation is a voluntary decision in the sense that they do not have to do so. They will of course bear in mind, when agreeing to mediation or not, the risk that the court may take it into account in relation to costs at some later stage.

 

So what do we mean by ‘voluntarism’?

For my purposes voluntarism simply means the willingness of each party to engage in a bona fide way in the mediation process. But of course that willingness to engage does not represent some sort of trap from which there is no escape. The willingness to engage inevitably comes with a freedom to disengage when a party rationally and responsibly decides that further engagement will serve no useful purpose.

Voluntariness permeates the entire mediation process from beginning to end. It is present throughout as can be seen from the following:

  • The decision to go to mediation in the first place is voluntary
  • The parties voluntarily agree upon a particular mediator
  • The parties agree on the mediator’s fee, and how it will be discharged
  • The parties sign a Mediation Agreement the terms of which have been approved by them
  • The parties voluntarily turn up on the agreed mediation day
  • The parties can choose to be accompanied or not as they wish
  • Each party is free to terminate the mediation at any point, and go home
  • The parties control the process and the outcome
  • There is no settlement until each party agrees terms and signs the settlement agreement

It can be seen from all this that voluntariness is present at every stage of the process. At no point is anything forced upon either party. These features are in stark contrast to the lack of control that parties in dispute experience in litigation.

 

Why is ‘voluntarism’ so important for positive outcomes?

When parties mutually agree to go to mediation it is reasonable to presume that they envisage at least a possibility that, although they are in disagreement, sufficient common ground might be found which they can convert into a landing zone to resolve their differences in a fair, realistic way. This willingness to explore solutions is a great start to the process. It is as if the parties are present on a joint enterprise in search of a better future, instead of doing battle over what happened in the past. It becomes a collaborative search for a mutually acceptable future.

Contrast this with the scenes of battle, of charge and counter-charge, of hostility and aggression so often encountered in the courtroom. Contrast this also with the negative atmosphere in the mediation rooms when parties have been ordered to be present by the court. There would, I imagine, be resentment in the air, a reluctance to engage in any bona fide way, and a pessimism about any positive outcome. Some may fear also that if they leave without agreement the judge may carry out an examination as to whether one or other party really did not put their shoulder to the wheel, and the possibility of an adverse costs order. All these potential negatives will make the process more of an uphill struggle for any mediator.

The chances of success must be greatly reduced in the absence of the positivity created by voluntarism.