Disputes: To mediate or “knot” to mediate?

The Court of Appeal has handed down a unanimous judgment in Churchill v Merthyr Tydfil County Borough Council [2023], confirming that the Court can, and will, order:

  • parties to engage in non-court dispute resolution (NCDR); and/ or
  • a stay in proceedings to allow NCDR.

This provides long awaited guidance on the Court’s power to make such orders, following Lord Justice Dyson’s comment in Halsey v Milton Keynes General NHS Trust 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 case

Churchill originated as a nuisance claim brought by Mr Churchill against Merthyr Tydfil County Borough Council (Council) relating to Japanese knot weed encroaching on his property from a neighbouring Council owned property, causing damage, and loss of value and enjoyment.

The Council queried why Mr Churchill had not used its Corporate Complaints Procedure (Complaints Procedure) and warned that if he issued a claim without doing so, they would apply to the Court for a stay and costs. Mr Churchill issued a claim for nuisance in July 2021 and the Council applied for a stay in February 2022.

Attracting the attention of seven intervening parties, including The Law Society, CEDR and CIArb, the Council’s application raised a bigger question of high public interest for the Court: can they legally stay proceedings for, or order parties to engage in, NCDR (such as the Complaints Procedure). The Court had to consider whether:

  • Dyson LJ’s comment in Halsey was “obiter” (an opinion or remark only, or part of the main reasoning for the decision in that case); and
  • if such power exists, whether ordering NCDR breaches Article 6 of the European Court of Human Rights, the right to a fair trial.

Court of Appeal decision

The Court of Appeal allowed the appeal in part, directing that courts can stay proceedings to order NCDR, including mediation, without creating an “unacceptable obstruction on their right of access to the court”. The comments in Halsey were held to be “obiter” and not binding on lower courts. The Court of Appeal did not fix any principles around how or when, in litigation, courts should make such orders, with the Master of the Rolls, Sir Geoffrey Vos stating, “it would be undesirable to provide a checklist or a score sheet for judges to operate”.

It is therefore not that NCDR will be ordered in every litigation, instead mediation (and other forms of NCDR) will form part of a suite of case management options available to the court. Considering the circumstances of each case, a judge will have to decide when, how and whether it would be appropriate to order some form of NCDR.


If used correctly, NCDR can be a highly effective, cost and time efficient dispute resolution tool, which is often less stressful than the litigation process. Whilst a dispute’s primary settlement focus may be placed upon the division of finances and/or assets, there are often more sensitive issues at play in family farming disputes, which an independent third party can explore in NCDR. For example, mediation allows for creativity and flexibility within a settlement, allowing the emotional value, or attachment attributed by a party to certain land or property, to be considered.

Flexibility also means intangible items can be included in a settlement, such as an apology, or if there is to be an ongoing relationship between the parties (likely in family farming cases), an agreement as to how future disputes may be dealt with. A court is simply unable to do this.

Moreover, the confidential nature of mediation can preserve family and/or business relationships. This can help prevent irreparable damage by ensuring all parties feel heard, providing them with an opportunity to air grievances (which may or may not be of relevance to the particular dispute) in a private, informal environment.

Churchill should therefore be viewed as a positive decision, which enables judges to compel parties to enter NCDR where they consider creative, flexible and cost-effective resolutions are possible. Moreover, if NCDR is ordered but not successful, this does not prevent the parties from proceeding to trial.

Following Churchill, there may be a concern that parties will be forced to engage in NCDR where there is no bona fide desire to settle. This in turn may result in NCDR being pursued as a litigation tactic only, allowing a party to fish for information. Whilst information in mediation is confidential and cannot be used in litigation, this does not prevent a party using it to inform their investigations. The Court of Appeal was silent on what sanctions may be applied, however if a party does not comply with NCDR, they could face adverse costs orders or more serious sanctions.


Churchill brings mediation and the need to consider NCDR to the forefront of parties’ minds. Not only could this avoid hefty litigation costs and preserve relationships, but it may also enable the parties to “unknot” issues which would otherwise have remained deeply entangled had the matter proceeded straight to trial.

Churchill may be the catalyst for a surge of mediations and other NCDR methods. This case may also have an impact on the case management of proceedings by directing parties towards settlement at an earlier stage.

Only time will tell.

Cereals 2024
Cereals 2024

We are exhibiting at Cereals 2024 on 11 and 12 June. Find us at stand 216. Cereals is the premier arable event in the UK involving...