In Wright v. Wright  EWCA Civ 234, the English Court of Appeal suggested that it may be time to review the rule articulated nearly a decade ago in Halsey v Milton Keynes General NHS Trust  EWCA Civ 576 to the effect that a court cannot order unwilling parties to participate in mediation.
The dispute in Wright involved two unrepresented businessmen who had a falling out after years of successful collaboration. The litigation had been hard-fought and protracted. The court observed that the case involved “a breakdown of trust and friendship” and observed that “mediation is the obvious way in which to explore these matters and allow the parties to move on before they cripple themselves with more debt.” The court also noted that the Ministry of Justice has rationalized recent reductions to civil legal aid on the basis that “mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues.”
In fact, the parties had become “resolute litigators” and had repeatedly resisted suggestions from the trial judge that they attempt mediation. Sir Alan Ward observed for the Court of Appeal that the case typifies the difficulties now being encountered by the judiciary in dealing with self represented litigants. The case demonstrates how challenging it can be “… to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences…” and it also shows how very difficult it is “…to shift intransigent parties off the trial track onto the parallel track of mediation.”
The current rule was expressed in Halsey v Milton Keynes General NMS Trust as follows: “It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.” The Court of the Appeal suggests that in the context of the current difficulties presented by the “emasculation of legal aid” and an influx of unrepresented litigants that “perhaps some bold judge will accede to an invitation to rule on these questions so that the court can have another look at Halsey in the light of the past 10 years of developments in this field.”
Meanwhile, closer to home, on February 12, 2013 the Alberta Court of Queen’s Bench announced that it will cease enforcing mandatory dispute resolution rules “…until such time as the judicial complement of the Court and other resources permit reinstatement.” Since November 2010, litigants in Alberta’s QB have been obliged to participate in a dispute resolution process – such as mediation or judicial dispute resolution (JDR) – before their matter could be set for trial. The enormous popularity of the JDR option, which has been developing for some time in Alberta (as well as in Québec and elsewhere) has resulted in delays while litigants wait for JDR dates, with corresponding heavy demands on judicial resources. Whether this development results in more litigants opting for mediation, shifts the pressure onto the trial list or results in more resources, remains to be seen.
These developments illustrate a fundamental issue that most common law jurisdictions will need to address as they turn, increasingly, to consensual dispute resolution (“CDR”) processes like mediation and JDR in an effort to enhance access to justice in an environment of fiscal restraint. Aspects of this issue include the following considerations:
- If the justice system wishes to encourage CDR it is logical to suggest that CDR be appropriately subsidized. The courtroom is heavily subsidized by the state and meaningful support for CDR implies that it too warrants meaningful financial support;
- Where will such support come from in the current fiscal environment? The only options are an influx of new money or a reallocation of existing money from adversarial to non-adversarial processes.
- Also, which cases, notwithstanding efficiencies, should be decided by the open court process?
We suggest that while an increased investment in civil justice is doubtless overdue in most jurisdictions, it would be unwise to rely on new funding as the answer – or at least the complete answer – to this problem. In order to respond adequately to the demands of reasonable access, civil justice systems are going to have to reallocate funding to CDR. This will inevitably also involve thinking about ways of dealing with problems early on in the life of a dispute, before the conflict escalates and is in need of the more heavy hand of the “emergency room” court system. Also, it is likely time not only to think about reallocating funds from adversarial civil processes but also from the criminal courts, which – while of course important – touch the lives of fewer Canadians than do civil and family processes.
Prof. M. Jerry McHale, QC (UVIC)
Prof. Trevor Farrow (Osgoode)
 For recent discussions on self-represented litigants and the justice system, see e.g. Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, Final Report (May 2013); Trevor C. W. Farrow et al., Addressing the Needs of Self-Represented Litigants in the Canadian Justice System, a White Paper prepared for the Association of Canadian Court Administrators (ACCA) (Toronto and Edmonton: ACCA, March 2012).