For many years, mediation in England and Wales was described as a voluntary process. Courts strongly encouraged parties to mediate, but the prevailing understanding after Halsey v Milton Keynes NHS Trust [2004] was that judges could not compel unwilling parties to do so. That position changed significantly with the Court of Appeal’s decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.
So, does mediation remain voluntary after Churchill? We often are asked this at Hampshire Mediation, and our answer is always that the short answer is: yes in principle, but not entirely in practice.
The Court of Appeal held that courts do have the power to stay proceedings or order parties to engage in a form of non-court-based dispute resolution, including mediation, provided the order does not impair the claimant’s right to a fair trial and is proportionate to the legitimate aim of resolving disputes fairly, quickly and at reasonable cost.
This is an important distinction. The court did not say that every case must go to mediation, nor that parties can be forced to settle. Mediation still depends on party autonomy in the sense that no one can be compelled to agree terms. A mediator cannot impose an outcome, and either party may decide not to settle.
However, parties may now be required to participate in the process. That means attending a mediation session, engaging with another ADR process, or pausing litigation while such a process takes place. Refusing without good reason may lead to delays, adverse costs consequences, or judicial criticism.
In practical terms, mediation is therefore no longer purely voluntary in the way many practitioners once understood it. It is more accurate to say that settlement remains voluntary, but attendance and participation may be mandatory where the court considers it appropriate.
The decision reflects a wider policy shift. Courts face pressure on resources, litigation costs are high, and judges increasingly view mediation as a mainstream part of civil justice rather than an optional add-on. Churchill confirms that NCDR is now embedded within case management.
For separating couples and family disputes, the principle is already familiar. Parties are often expected to consider mediation before issuing proceedings, and courts favour constructive resolution where safe and suitable. In civil claims, Churchill moves the law closer to that same expectation.
The real lesson is this: mediation remains voluntary as to outcome, but increasingly compulsory as to consideration. Parties who ignore it altogether do so at their peril.