The recent decision by the Court of Appeal in the case of Lomax v Lomax, has called into question whether mediation can be made compulsory.
Mediation is a form of alternative dispute resolution, aimed at resolving disputes between parties, through the instruction of an independent mediator. Mediation is currently a voluntary process, widely advocated and encouraged by the courts. In some cases, the courts have imposed costs penalties on parties for an "unreasonable" refusal to mediate but have never gone as far as to compel parties to undertake mediation if they don't want to engage in such a process.
The case of Lomax, although a decision based upon a judge-led process of aiming to resolve disputes, known as, Early Neutral Evaluation ("ENE"), has rather called into question the approach to be taken in mediation. Lomax was a case under the Inheritance (Provision for Family & Dependants Act) 1975, brought by a spouse and resisted by her step-son. The spouse wished to engage ENE to assist the parties in reaching a settlement, a step which was resisted by her step-son. At first instance, although the judge recognised that ENE was clearly appropriate in that case, it was held that ENE could not be compulsory if both parties did not consent. This decision was however appealed and later overturned, the Court of Appeal finding that the consent of the parties, was not required under Civil Procedure Rule 3.1(2)(m).
Although the Lomax decision is a case specifically about compelling parties to engage in ENE, as opposed to mediation, the Court indicated that compulsory mediation was likely to be another form of ADR which the courts would be asked to adjudicate upon in the future. Watch this space for further bulletins on this topic.
Case Citation: Lomax v Lomax [2019] EWCA Civ 1467
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