Edward Fox of Fee Langstone looks at how compulsory mediation, under Section 145 of the Trusts Act 2019, allows the Court to order unwilling parties in trust disputes to participate in alternative dispute resolution, provided the dispute qualifies as an "internal matter." While it undermines the voluntary nature of mediation, this power has proven to be an effective tool, with high settlement rates even in cases where mediation was compelled, making it a valuable resource for resolving trust-related disputes.
Read MoreA recent Irish High Court decision reduced a costs award. This reduction occurred because the plaintiffs’ solicitor failed to comply with the statutory obligation to advise about mediation before commencing proceedings. An English court has also recently imposed a greater reduction on recoverable costs arising from a party’s refusal to consider mediation. Gearoid Carey and Gerard Kelly, partners at Mason Hayes & Curran, examine this decision in the context of an apparent greater judicial willingness to get parties to mediate or else suffer potential cost consequences.
https://www.mhc.ie/latest/insights/beware-of-not-mediating-a-dispute#page=1
Read MoreA recent Court of Appeal decision in England ruled that parties can be compelled to engage in alternative dispute resolution (ADR), departing from the traditional view that ADR is purely voluntary. While this decision raises questions about the future of compulsory ADR in Scotland, no similar requirement currently exists, though the ruling may influence future procedural developments.
Read MoreFrancesca Muscutt and Millie Bailey of DAC Beachcroft look at the landmark decision, James Churchill v Merthyr Tydfil County Borough Council, where the Court of Appeal has ruled that the courts can stay proceedings and order parties to engage in Alternative Dispute Resolution (ADR), even where one or both parties have expressed an unwillingness to engage in the process.
The benefits of ADR have long been recognised. It is an efficient mechanism for resolving disputes quickly, privately and usually far more cheaply than taking a case to trial. The Pre-action Protocol for Professional Negligence (which covers claims against accountants and auditors) requires the parties to consider ADR before commencing court proceedings. The Court of Appeal decision in Churchill goes further by underscoring the importance of ADR even once proceedings are underway. The courts have the power to stay the proceedings and compel the parties to engage in ADR and there is an expectation this power will be exercised.
Read MoreNicola Bridge, Leah Alpren-Waterman and Rob Wilson of Mishcon de Reya LLP explain that the recent UK Court of Appeal judgment in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 signifies a significant shift towards compulsory ADR, departing from the previous stance set in Halsey v Milton Keynes General NHS Trust; it highlights the court's newfound authority to order parties to engage in ADR, provided it aligns with principles of fairness, legitimate aims, and proportionality to achieving those aims and marks a pivotal moment in the evolution of ADR within the civil justice system.
https://www.mishcon.com/news/compulsory-adr-out-of-the-weeds-will-the-court-order-parties-to-mediate
Read MoreAmelia Nice, of Doughty Street Chambers, considers ways to address resistance to making mediation mandatory (changing the language, providing information, and ensuring public confidence).
Read MoreCEDR's CEO, James South, explains why CEDR is in favour of mandatory mediation, covering arguments against mandatory mediation and CEDR's response to these and what it considers is needed to make a success of mandatory mediation.
https://www.cedr.com/mandatory-mediation-everything-you-need-to-know/
Read MoreStevens & Bolton, an independent UK law firm, write that the High Court ruled that while an unreasonable refusal to mediate can be a factor in cost awards, it does not automatically result in severe sanctions, as seen in Paul Richards v Speechly Bircham LLP. The decision highlights the court’s broad discretion in cost assessments, reinforcing that parties should engage in mediation to avoid potential financial consequences but that a refusal alone does not guarantee a punitive outcome.
Read MoreSheena Sood and Anna Braden of Beale & Co consider the case of Richards & Anor v Speechly Bircham Llp & Anor (Consequential Matters) [2022] EWHC 1512 (Comm) which, although it highlights the importance the Courts put on the parties engaging in mediation, suggests that a failure to engage in mediation is only one of the factors Courts look at when deciding on costs.
https://beale-law.com/article/failure-to-mediate-what-are-the-consequences/
Read MoreBill Lister of Appleyard Lees explains the benefits and advantages of mediation, whether and how it can be ordered (in the UK), and how it can be used strategically.
https://www.appleyardlees.com/mediation-an-alternative-to-litigation/
Read MoreThe CJC considers two questions (answering both in the affirmative): whether parties can lawfully be compelled to participate in ADR; and whether compulsion to participate in ADR could be a desirable and effective development
https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf
Read MoreTony Allen, CEDR, provides a digest of (2020, UK) decisions that relate to mediation and its place in civil justice, including costs sanctions for not mediating, confidentiality of the mediation process, judicial encouragement and facilitation of mediation, and conflicts of interest and mediator appointments.
https://www.cedr.com/mediation-law-during-the-covid-19-pandemic/
Read MoreAn article from Hill Dickinson provides a reminder of the necessity for parties to engage in ADR and mediation and the costs consequences that will be imposed on those parties that fail to engage.
https://www.hilldickinson.com/insights/articles/mediation-–-reminder-take-part-or-face-consequences
Read MoreEd Llewelyn-Evans and Carrie Gothard consider recent english cases that encourage parties to consider a mediating their disputes (and why this is a commercial way to approach disputes).
Read MoreThis article looks at a recent (2020) case in which the (UK) High Court disallowed 50% of a successful party's costs as a result of its unreasonable failure to engage in ADR.
Read MoreThis article looks at 2 recent (2020) cases in which the (UK) High Court imposed costs sanctions as a result of a party's unreasonable failure to engage in ADR, despite a party's (justifiable) belief in the strength of their case.
Read MoreThis article looks at a recent (2020) case in which the (UK) High Court was willing to penalise a successful party in costs for an unreasonable failure to mediate, and considers the application of sanctions under the Halsey system.
Read MoreHow mediation will help flatten the curve in New Zealand Civil Courts
https://www.linkedin.com/pulse/how-mediation-help-flatten-curve-new-zealands-civil-courts-sharp
Read MoreArticle notes that (UK) courts already encourage mediation, and may penalise a party which unreasonably refuses to mediate, and suggests recent case - in which a court ordered Early Neutral Evaluation - may indicate increased willingness to order mediation.
Read MoreSuzanne Wharton and Naomi Park of DAC Beachcroft consider recent cases that indicate that the UK Courts are increasingly prepared to exercise their powers to compel parties to engage in ADR.
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