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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

Nature of the dispute

The Court’s examples of unsuitable cases were those concerning a point of law, those where injunctive relief or other relief is essential to protect the position of a party and those where there are allegations of fraud or other commercially disreputable conduct.  However, most cases are not by their very nature unsuitable for ADR.