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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
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Government Pledge
In March 2001 the Lord Chancellor made a formal pledge committing government department’s agencies to settle legal cases by ADR techniques whenever the other side agrees to it. In Royal Bank of Canada
-v- SOS for Defence (2003) Lewiston J made it clear that where a successful government department refuses to mediate in breach of the pledge to settle disputes by ADR where possible, they will be deprived of their costs. (The text of the pledge appears in Appendix 1 below). However, the Court of Appeal in Halsey disagreed with the great weight attached to the pledge in Royal Bank of Canada. They held that public bodies should be dealt with in the same way as other litigants. If a case is suitable for ADR, then it is likely that a party refusing to agree to it will be acting unreasonably, whether or not it is a public body to which the Government’s ADR pledge applies.
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