Cutting through the knotweed
How encouraging mediation can support both litigation and arbitration
Japanese knotweed is difficult to get rid of. And so is a binding precedent from the Court of Appeal. So when James Churchill insisted on suing the local council in Merthyr Tydfil over knotweed that was encroaching from the council’s land, a deputy district judge couldn’t find a way of cutting through a ruling from 2004 which said that parties could not be compelled to mediate.
The council, which wanted claimants to use its internal complaints procedure, appealed against the ruling. And in 2023 the Court of Appeal managed to eradicate the knotty precedent. Parties can now be ordered to “engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost”.
That power is taking root. Civil procedure rules were updated in October and the High Court ordered mediation in a case the following month, leading to a settlement.
Mediation can be defined as a process in which parties try to reach an amicable settlement of their dispute with the help of a third party who has no authority to impose a solution on them. The mediator is not an arbitrator, still less a judge. But last week the lady chief justice called for closer working between those engaged in mediation, arbitration and litigation.
In a lecture to the British Institute of International and Comparative Law, Baroness Carr of Walton-on-the-Hill suggested the creation of a mediation council to ensure that England and Wales can continue to operate as a leading international mediation centre.
That’s because mediation is becoming increasingly important as a way of resolving international commercial disputes. Until a few years ago, these claims were usually resolved by arbitrators because arbitration awards can be enforced in most countries of the world under the New York convention, a treaty dating back to 1959.
But, said Carr in her lecture last week, the growth of arbitration has led to the sort of problems that persistently trouble courts — hearings take too long and cost too much. As one arbitration specialist told me afterwards, arbitrators have every reason to allow the parties as much time as they want and no incentive to speed up the proceedings.
So steps were taken to create a new international treaty under which agreements reached by mediation could be enforced across borders. This became the Singapore convention on mediation, signed by 58 countries (including the UK) but ratified by only 14 countries (not including the UK). The convention became binding on the first states to ratify it in 2020.
Litigation, arbitration and mediation were complementary rather than competitors, Carr argued. Without decisions from the courts, lawyers would not be able to advise clients when to settle.
And the promotion of international mediation would enhance the rule of law, she believed. It would lead to the development of mediation centres. It would support mediation training. It would generate work for national courts that enforce international settlements. And it would reduce pressure on international arbitration. But the first step would be to create a committee, drawn from the judiciary and others involved in dispute resolution, to plan a coherent structure.
Countries such as Singapore and India are now ahead of the UK. But if the government can be persuaded that mediation is a valuable invisible export, there may still be time to catch up.
As you can see, I’ll be speaking about open justice at the Old Bailey next Tuesday evening. Open to all, without charge, but you have to register first with annie.grey@cityoflondon.gov.uk
May mediation roots grow and strengthen accross all Divisions of the civil courts. But on enforcement: there is an immediate problem of law between civil courts and in many family (where many agreements must be approved by a judge).
Forgive what is probably a simply minded question, but why do mediated settlements need more treaty-based international recognition than any other settlement contract?