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Introduction

The Duty to Mediate
ADR is not mandatory
The effect of CPR 1.3
Government Pledge
Case management powers

Pre-action protocols
Protocols Practice Direction
Failure to comply
References to ADR in the protocols
Professional Negligence Protocol
Court Guides

ADR Orders
Commercial Court Order
Clinical Negligence Order

Effect of failing to comply with an ADR Order

Costs Sanctions and Burden of Proof

Without Prejudice Correspondence

Factors indicating refusal was unreasonable
Nature of the Dispute
Merits of the Case
Use of other settlement methods
Costs of Mediating
Effect of Delay
Whether the mediation had a reasonable prospect of success

Relevant Court Decisions
Cases penalising claimants for failing to negotiate
Cases penalising parties for failing to mediate
Cases where a refusal to mediate was reasonable

Appendix 1
Appendix 2

Costs Sanctions and Burden of Proof

In deciding whether to deprive a successful party of some or all of his costs on the grounds that he has refused to agree to ADR, the court should bear in mind that such an order is an exception to the general rule that costs should follow the event.  The burden is on the unsuccessful party to show why there should be a departure from the general rule.  The fundamental principle is that such departure is not justified unless it is shown by the unsuccessful party that the successful party acted unreasonably in refusing to agree to ADR.

Although the Court in Halsey confined itself to considering when it was appropriate to deprive a successful party of its costs, the courts may also penalise an unsuccessful party for their refusal to mediate by an award of indemnity costs.  Examples of this are given below.