Page 83 - Solving Housing Disputes

advise and act for a clients through ADR in the court process. 225 If ADR is to be
normalised in housing disputes and parties are to be encouraged to resolve
disputes early and at proportionate cost, practical obstacles to uptake must be
removed. This includes reducing the procedural steps a practitioner must
complete to engage in a process the justice system is otherwise seeking to
encourage. We recommend legal aid practitioners should not have to obtain
prior authority from the Legal Aid Agency to engage in ADR but should be
free to pursue it as part of an ordinary legal aid certificate.

Stronger compulsion to ADR

3.51 The historic position in England and Wales has been that court-ordered
mediation, without party consent, constitutes a likely violation of the right to a
fair trial under Article 6 ECHR. This approach was on the basis that mandatory
mediation strips the mechanism of its voluntary character, said to be the hallmark
226
227
of effective ADR. Subsequent developments have softened that position.
228
In August 2019, the Court of Appeal in Lomax held that CPR 3.1(2)(m), which
refers to a court’s powers as including “hearing an Early Neutral Evaluation
(“ENE”)”, allowed for a court to order ENE without party consent. Halsey did
not apply, on the basis that the relevant section of the CPR dealt with an ENE

225 Through the CIVAPP8 form available at https://assets.publishing.service.gov.uk/government/upload
s/system/uploads/attachment_data/file/539965/civapp8-version-19-july-2016.pdf

226 The position has been entrenched since the Court of Appeal decision in Halsey v Milton Keynes
General NHS Trust [2004] EWCA Civ 576. Lord Dyson remarked that “to oblige truly unwilling parties
to refer their disputes to mediation would impose an unacceptable obstruction on their right of access to
the court” para 9.

227 Article 5(2) of the 2008 European Mediation Directive explicitly permits the use of mandatory
mediation. In 2010, the Court of Justice of the European Union ruled in Alassini and Others, Joined
Cases C-317/08, C-318/08, C-319/08 and C-320/08 that an Italian law requiring an attempt to reach an
out-of-court settlement within 30 days before a dispute could be heard by the court was not a fetter on
the right to a fair trial under article 6. Mandatory mechanisms were said to be compliant, so long as the
procedure is not binding, does not cause delays, suspends the limitation period on a claim and that interim
measures are available in certain circumstances. Domestically, in September 2019 the Online Civil
Money Claims service commenced piloting “opt-out” mediation for defended claims of less than £300
(extended to defended claims of less than £500 in December 2019) where parties participate in mediation
unless they actively elect to remove themselves from it.

228 Lomax v Lomax [2019] EWCA Civ 1467.

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