Do the courts have too much power when it comes to deciding how parties conduct their dispute or can they be an essential guide in steering efficient settlement of often challenging cases?
As a result of the Court of Appeal decision in the case of Churchill -v- Merthyr Tydfil County Borough Council in 2023, it was decided that the court has the power to order unwilling parties to engage in alternative dispute resolution (ADR). The Civil Procedure Rules were amended so that the court must now consider whether to order or encourage parties to participate in ADR, including mediation.
In a recent case, the owners of well-known fashion brand Superdry, fell into a costly trademark dispute with a company which ran Manchester City Football Club's commercial operations.
By the pre-trial review, both parties had already spent hundreds of thousands of pounds on costs. The claimant's lawyers argued the court should order a mediation as there were several areas within the dispute, which could potentially be settled out-of-court in a way which the court would not be able to do.
In response, the defendants argued that the court should only order mediation if there was “a realistic prospect of success”. They also said it was “too late in the day”. Previous attempts at negotiation having failed, the defendants believed that both parties would benefit from a decision by a judge.
The defendants also said that as these were commercial parties with experienced solicitors, if there was realistically going to be a settlement, one would have already been achieved.
The court, in deciding to order mediation said, “Experience shows that mediation is capable of cracking even the hardest nuts”. The purpose of mediation is to “remove roadblocks to settlement” and that a “short, sharp” mediation in December 2024 would be beneficial.
In other related news on the 13th January 2025 the parties notified the court that they had finally settled their lengthy dispute!
Did I mention that I am an accredited mediator? 😉
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