Judicial mediation proves effective as a cost-saving alternative for parties unable to afford private mediation
A High Court master has highlighted how judicial mediation is emerging as a critical “safety net” for parties facing financial constraints in litigation. The case of Dover Farm Developments Ltd & Anor v Smith & Anor, a defamation case, showcased how court-involved mediation resolved a dispute where one party was unable to afford private mediation.
The case initially took a step toward resolution in July when the defendant litigants in person failed to have the claim struck out and the claimants were denied permission to amend their particulars of claim. However, during the hearing, Master Fontaine urged both parties to consider judicial mediation as a potential avenue for resolving their issues. Although the court can order Alternative Dispute Resolution (ADR), Master Fontaine found that the defendants, due to their financial limitations, would likely be unable to afford the costs of private mediation.
Recognizing this, she ordered judicial mediation to be conducted by the court, which took place before Deputy Master Skinner in September 2025 and was successful. Master Fontaine’s ruling emphasized that the hearing was not wasted, as it provided an opportunity for both parties to engage in mediation, potentially preventing a prolonged and costly legal battle.
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Barrister and mediator Peter Causton took to LinkedIn to highlight how the ruling suggested that judicial mediation is becoming a key tool in the litigation process, particularly when affordability presents a barrier. He stated that, post-Churchill, the courts have broad powers to direct ADR and that the Dover Farm case demonstrated how these powers could be creatively used to replace costly private mediations. As litigation costs continue to rise and workloads increase, judicial mediation is emerging as an essential access-to-justice tool, not just an exception.
Barrister Robin Somerville, who also serves as a deputy district judge, echoed these thoughts, sharing that, in his own experience, parties often prefer judicial mediation when the stakes of litigation outweigh the costs. Somerville noted that many times, after court hearings, he suggests informal discussions outside the courtroom, which often leads to settlements. He added that the formalization of this process, as seen in Dover Farm v Smith, would not only save time and money for the parties involved but also for the court system.
In a legal environment where the cost of litigation continues to escalate, judicial mediation provides a valuable alternative, allowing for faster and more affordable resolutions. As this case demonstrates, when private mediation is out of reach, judicial mediation steps in as a vital mechanism to ensure fairness and access to justice.