The Article 6 obiter in Halsey

In his judgment, Dyson LJ raised the possibility that to force parties to mediate may offend Article 6, when he said:

"...it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of Article 6." (of the European Convention on Human Rights)

More senior judges did not agree. In March 2008 Lord Phillips (then Lord Chief Justice) said this:

"Parties should be given strong encouragement to attempt mediation before resorting to litigation. And if they commence litigation, there should be built into the process a stage at which the court can require them to attempt mediation – perhaps with the assistance of a mediator supplied by the court."

...and in May 2008 Sir Anthony Clarke (Master of the Rolls) said this:

"There may well be grounds for suggesting that Halsey was wrong on the Article 6 point... It seems to me that the court has sufficient powers at present routinely to direct the parties to take part in a mediation process or attend a mediation hearing during the course of the pre-trial stage of any proceedings."

Thus the day may be approaching when judges routinely order mediation.