The Case for Express Compulsory Mediation in England and Wales

Abstract

The current official position on compulsory mediation in England and Wales is that the courts do not have the power to compel parties to mediate but can impose cost sanctions on parties who unreasonably refuse to mediate. Nevertheless, the courts in England and Wales have ordered parties to mediate. Additionally, the courts’ application of the Halsey factors in deciding when a party’s refusal to mediate will be deemed unreasonable, has arguably created a body of divergent case law. This article argues that mediation should be made compulsory for civil disputes in England and Wales to remedy the existing state of uncertainty.