Posted: Friday, 4 January 2019 @ 13:43
As an experienced mediator and someone who genuinely believes Court should be a last resort, I am sometimes asked to refer parties to the legislation to encourage them to mediate.
Where do you turn?
You turn to the Civil Procedures such as the following sections:
8. Litigation should be a last
resort. As part of a relevant pre-action protocol or this Practice Direction,
the parties should consider whether negotiation or some other form of ADR might
enable them to settle their dispute without commencing proceedings.
9. Parties should continue to consider the possibility of reaching a
settlement at all times, including after proceedings have been started. Part 36
offers may be made before proceedings are issued.
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10. Parties may negotiate to settle a dispute or may use a form of ADR
(a) mediation, a third party facilitating a resolution;
(b) arbitration, a third party deciding the dispute;
(c) early neutral evaluation, a third party giving an informed opinion
on the dispute; and
The Civil Procedure Rules
· Part 1 – the overriding objective - the court has a duty to encourage the parties to use an ADR procedure if appropriate and to facilitate the use of such a procedure.
Rule 1.4(2) sets out the activities the court may undertake which constitute active case management. These include:
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appopriate and facilitating use of such procedure;
(f) helping parties to settle the whole or part of the case..”
· Part 3 & 26 – The court’s case management powers include the ability to stay the proceedings for a certain period to allow ADR.
CPR Rule 26.4(1) provides that the court may “stay” proceedings where a party makes “ a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means” when filing the allocation questionnaire.”
Case Law Can also help.
The Court of Appeal has ruled in Halsey v Milton Keynes General NHS Trust 2004 EWCA Civ 303“All members of the legal profession who conduct litigation should now
routinely consider with their clients whether their disputes are suitable for