What judges say about mediation

Bruce Greig
November 18, 2020

A collection of quotes from judges, mostly from the England & Wales Court of Appeal, extolling the virtues of mediation (or, more often, sternly berating the parties for coming to court without having first tried mediation).

Need some pithy quotes from judges to persuade your clients to mediate before they reach the court room? I've got your back, here you go:

“The whole point of having mediation ... is that the most difficult of problems can sometimes be ... resolved.

Judge LJ Leicester Circuits Ltd. v Coates Brothers Plc [2002] EWCA Civ 333

“This is an appeal solely about costs. It is also a sad case about lost opportunities for mediation. It demonstrates, in a particular class of dispute, how wasteful and destructive litigation can be.”

Rix LJ, Rolf v De Guerin [2011] EWCA Civ 78

“Understand that the process of mediation involves give and take on both sides. It is no good going into mediation saying, 'Be reasonable. Do it my way.'”

Thorpe LJ, Day v Day [2002] EWCA Civ 1842

“I would hope that the parties may be able to reach a financial settlement of this unhappy dispute without the need for a further hearing in this court.”

Brook LJ, Neal v Jones (t/a Jones Motors) [2002] EWCA Civ 604

“It seems to me daft for these parties to embark upon this appeal without having thought of undertaking some process of mediation ... therefore I add my exhortation that mediation should be undertaken because it could produce the answer of practical importance to these parties. It will save the Court of Appeal a great deal of work.”

Ward LJ, Ezsias v Welsh Ministers [2008] EWCA Civ 874

“This is clearly one of those appeals which should first undergo the process of mediation.

Johnson v Ministry of Defence & Anor [2012] EWCA Civ 896

“Each will have to accept that those who live by the sword must risk dying by the sword as well. That is the inevitable risk of litigation…. What can the court do to prevent what, to those outside the litigation, may seem like an unseemly, or at least uncommercial, squabble? We can and we do encourage mediation, the earlier the better. It does have an extraordinary knack of producing compromise, even where the parties appear, at the start, to be intractably opposed.

Ward LJ, Daniels v The Commissioner of Police for the Metropolis [2005] EWCA Civ 1312

“A trial of the issues before me is not the way to resolve the real issues between the parties.”

Deputy Judge MICHAEL GREEN QC London Borough of Brent v Johnson & Ors [2020] EWHC 2526

“It seems to me that this matter should not be argued in court unless and until an attempt at mediation has been shown to be unsuccessful.”

Sir Andrew Morritt, Raglan Housing Association v Southampton City Council [2006] EWCA Civ 1567

“None of you have been well served by the court process and that is regrettable. The idea of starting all that again is, as I say, one that you will not welcome. So signing up just to sit down in a room with a mediator and see where you get to cannot be a bad idea and I would urge each of you -- because you all, in fact, I suspect, feel about this in the same way from your different perspectives -- to take up the suggestion of mediation.”

McFarlane LJ, Kelly v Miller & Ors [2014] EWCA Civ 1151

“It is surprising how frequently even the most intractable case produces a satisfactory outcome in mediation assisted by a trained mediator”

Ward LJ, Whapples, R (on the application of) v Birmingham East & North Primary Care Trust [2008] EWCA Civ 465

“But lawyers are not necessary for mediation; indeed, lawyers frequently get in the way of mediation. I hope mediation will take first place in what now follows.”

Sedley LJ, Jiad v Byford & Ors [2002] EWCA Civ 1224

“I would have thought that before we go any further in this case the parties should invite the court mediation service to bring some common sense to bear in these parties' lives.

Ward LJ, Egbaiyelo v Egbaiyelo [2001] EWCA Civ 1970

“On the question of mediation, I should make it clear that there are two ways in which blood feuds can be resolved, either by a further killing or by a mediation between the two families, but in this case there are difficulties.”

Arden LJ, DK (Iraq) v Secretary of State for the Home Department [2008] EWCA Civ 1169

“...mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues … Judge Thornton attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused. What, if anything, can be done about that? You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable.”

Ward LJ, Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234

“You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.”

HHJ Wildblood, Re B (a child) [2020] EWFC B44

“It is still not too late for the parties to consider the benefits of mediation. As Tomlinson LJ said, a skilled mediator could achieve a great deal in the course of a proper mediation between the parties.”

Sir Timothy Lloyd, Kelly v Miller & Ors, [2014] EWCA Civ 1151

“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.”

Ward LJ, Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234

“We have told the parties in the course of argument today the potential consequences of unreasonable refusal or failure to take advantage of the availability of mediation, and they will need to bear that in mind, as well as the benefit of putting a negotiated end to this long-running dispute without further financial and emotional blood-letting.”

Sedley LJ, Lewis v Barnett (t/a Windmill Racing Stables) [2004] EWCA Civ 807

“No-one should underestimate the new dynamic that an experienced mediator brings to the round table. He has a canny knack of transforming the intractable into the possible. That is the art of good mediation and that is why mediation should not be spurned when it is offered.”

Ward LJ, Ghaith v Indesit Company UK Ltd [2012] EWCA Civ 642

“This litigation fills me with real gloom and despair. Its first expedited hearing was listed for two to three days. It is now listed for 25 days. Like Topsy it has grown and I cannot but wonder whether it has grown out of all proportion. It strikes me yet again as the kind of case which should not return to this court before the parties have undertaken some mediation.”

Ward LJ, Khudados v Hayden & Ors [2007] EWCA Civ 466

“It is right that the parties should appreciate now what the score is because the issues frankly do not justify another bout of litigation, the agony and expense of which the parties are only too well aware of. The court's mediation services are available to them from today, and we strongly encourage them, in spite of the bad blood that now runs between them, to set about using mediation as the best, or the least worst, way of bringing finality to this long-running dispute.”

Sedley LJ, Lewis v Barnett (t/a Windmill Racing Stables) [2004] EWCA Civ 807

“I suspect that there are many disputes of this kind where one party offers and desires mediation and is simply met by a blank refusal. The court is entitled to take an unreasonable refusal into account, even when it occurs before the start of formal proceedings.”

Rix LJ, Burchell v Bullard & Ors [2005] EWCA Civ 358

“Instead of going to court and having an expensive and uncertain piece of litigation, parties may be sensible to consider mediation.

Lord Neuberger, former President of the Supreme Court, Radio 4 Today programme 27 April 2020