The Future Of Compulsory Mediation

The recent decision by the Court of Appeal in the case of Lomax v Lomax, has called into question whether mediation can be made compulsory.

Mediation is a form of alternative dispute resolution, aimed at resolving disputes between parties, through the instruction of an independent mediator. Mediation is currently a voluntary process, widely advocated and encouraged by the courts. In some cases, the courts have imposed costs penalties on parties for an "unreasonable" refusal to mediate but have never gone as far as to compel parties to undertake mediation if they don't want to engage in such a process.

The case of Lomax, although a decision based upon a judge-led process of aiming to resolve disputes, known as, Early Neutral Evaluation ("ENE"), has rather called into question the approach to be taken in mediation. Lomax was a case under the Inheritance (Provision for Family & Dependants Act) 1975, brought by a spouse and resisted by her step-son. The spouse wished to engage ENE to assist the parties in reaching a settlement, a step which was resisted by her step-son. At first instance, although the judge recognised that ENE...