The Brave New World of Mediation: Mandatory Participation, and Enforceable Agreements

Rob Langley

May 2023

A paper presented to the Society of Construction Law on 4th April 2023. 

The Civil Justice Council published a report on compulsory ADR in June 2021 and the Ministry of Justice followed with a consultation in 2022. This paper discusses the findings of these reports, and considers the increasing readiness of judges and the Government to contemplate mandatory mediation. It looks at the legality of compulsory mediation and reasons for and against it. The author examines the plans of the Ministry of Justice and how mediation could be embedded as an integral step in the court process. He comments that a brake upon the growth of mediation is unfamiliarity, and possibly some hostility, in the legal profession, and that the challenge with compulsion will be in the detail, particularly timing.

A. Introduction – B. The status quo – Carrot and stick – C. Enforcement of agreements to refer to ADR – D. The legality of compulsory mediation in the context of Article 6 of the ECHR – E. Reasons for not making mediation compulsory? – F. The CJC’s observations on compulsory ADR – G. The MoJ’s plans for mediation – Embedding mediation as an integral step in the court process – H. Government intervention in the supply of mediation services – I. Conclusion

The author: Rob Langley MA FCIArb is a mediator and adjudicator.

Text: 12 pages