Section 145 of the Trusts Act 2019 enables the High Court to order that a dispute (as defined) be submitted to mediation (or other ‘ADR process’), provided the terms of the trust do not indicate a contrary intention and the dispute relates to an 'internal matter' (i.e. a matter to which the parties are trustee / beneficiary, or trustee / trustee).
S v N [2021] NZHC 2860 was the first case to consider the section. Wylie J considered the matters which could bear on the Court's exercise of discretion when deciding whether to direct the parties to mediation. Those matters could include cost, confidentiality, speed, the seriousness and complexity of the matter, the suitability of the proposed mediator, the wishes of the parties, the wishes of the settlor if known, finality, and enforceability. As the Judge observed, those considerations are not an exhaustive list. Wylie J considered that the particular circumstances of that case - including a clear lack of good will between the parties and a protection order preventing one of the parties from contacting the other - meant that the dispute should not be submitted to mediation.
An article from CEDR (Neil Goodrum) - a sequel to an earlier article on preparing and opening - lists six things skilled mediation advocates do in the early stages of a mediation.
Beth Graham of Mediate.com looks at an article that examines the public’s lack of understanding of alternative dispute resolution (ADR) processes like mediation and arbitration, revealing key misconceptions that could have ethical and legal consequences. The authors recommend increased public education and clearer communication from legal professionals to ensure informed decision-making.
Henrietta Jackson-Stops explores how the UK’s Civil Mediation Council supports the push for compulsory mediation, emphasising its high success rate and significant cost and time savings for litigants and the wider justice system. However, it raises concerns about the expectation that such mediation should be free or low-cost, arguing that investing in professional, regulated mediation is justified by its substantial long-term benefits.
Sukhi Kaler and Liz Williams of CMS Law-Now look at how the United Kingdom’s Civil Justice Council (CJC) has concluded that mandatory alternative dispute resolution (ADR) is legally compatible with the European Convention on Human Rights and could positively influence dispute resolution culture. While further work is needed before implementation, the report suggests that compulsory ADR—if carefully designed—could improve case management without infringing on access to the courts.
Charlie Young of Mediate.com looks at how research on the psychological side of mediation has highlighted the impact of confirmation bias, where ingrained perceptions can hinder dialogue and create impasses, requiring mediators to approach the process with empathy, non-judgment, and patience. Mediators can help facilitate breakthroughs by fostering inclusive communication, gently guiding participants through the slow reshaping of perceptions to reach mutual understanding and resolution.
Trust, Wills and Probate Mediations are among the most challenging of cases. The intense mix of emotional, legal and financial issues can make achieving sustainable outcomes incredibly difficult.
To help lawyers who mediate in this sector, CEDR has put together a practitioner-led guide that offers practical advice on how to manage and prepare for your mediations.
This guide is designed to help individuals responsible for addressing employee conflict within an organisation achieve better outcomes for employees and the business. Written by leading practitioners and combining CEDR’s institutional learning and understanding of conflict, this 35 guide covers:
What is Workplace Conflict?
What is Mediation?
The Difference between Workplace and Employment Mediation
In-house counsel often prefer arbitration or mediation over litigation due to the 4 Cs: control over risks, confidentiality, and process; cost efficiency; commercial considerations to preserve relationships; and the creativity these methods offer for tailored solutions. These alternative dispute resolution methods allow for greater flexibility, reduce the financial and relational strain of litigation, and facilitate innovative, non-financial resolutions.
Henrietta Jackson-Stops of IPOS Mediation explores how the UK case of Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd highlights the significant disparity between the damages claimed (£3.7m) and awarded (£2,000), along with the high interim costs imposed on the Claimant (£500,000). The judgment also raises key questions about the role of blind bidding as a form of ADR, distinguishing it from mediation and questioning whether it fulfills parties' obligations to attempt settlement before trial.
The CJC considers two questions (answering both in the affirmative): whether parties can lawfully be compelled to participate in ADR; and whether compulsion to participate in ADR could be a desirable and effective development
Jon Lang of IPOS Mediation looks at how the case of Kumar v L.B. of Hillingdon highlights the potential issues of compulsory mediation, particularly in cases involving significant power imbalances, such as disputes between parents and local authorities over special educational needs. The judgment emphasises the importance of ensuring that parties have the necessary support, such as legal representation, to prevent unfair outcomes and stresses the need for safeguards if mediation becomes compulsory.
Rebecca Attree of IPOS Mediation explains how blended mediation, which combines in-person and remote participation, offers a flexible and efficient approach to dispute resolution, reducing travel costs, improving scheduling, and accommodating participants' preferences. While some may have concerns about mediator neutrality in mixed formats, the approach enhances accessibility and adaptability, making it a valuable tool in the post-Covid era.
Sir Geoffrey Vos explains that he intends that the UK judiciary will encourage a more holistic approach to dispute resolution, including encouragement of mediation, to improve the process of dispute resolution