Following the English Court of Appeal's recent judgment in the Halsey and Milton Keynes General NHS Trust [2004] EWCA (Civ) 576 broad support for the use of ADR in general and mediation in particular is given by the Court of Appeal.
Furthermore, the Court of Appeal did take the opportunity to outline guidelines on aspects which had not been fully clarified previously.
The present position is that it is not possible for the court to order - but the court may strongly encourage - the parties to attend a mediation, and it may have severe costs consequences for a party declining to engage in mediation even though it will be up to the unsuccessful party in the litigation to prove that the successful party had unreasonably refused to attend the mediation.
When considering which aspects the court should take into account when evaluating whether a party had acted unreasonably in refusing to engage in mediation, the Court of Appeal referred to following factors:
A. The nature of the dispute.
B. The merits of the case.
C. The extent to which other settlement methods have been attended.
D. Whether the costs of the ADR would be disproportionately high.
E. Whether any delay in setting up and attending the ADR would have been prejudicial.
F. Whether the ADR had a reasonable prospect of success.
In any event the judgment is yet an other strong reminder that litigants and their lawyers should routinely consider whether their disputes are suitable for ADR including especially mediation.
For further details reference is made to our entire article on this subject.