Articles
The Duty To Mediate
Many clients will have heard of the expression “ADR” or “Alternative Dispute Resolution”. What is ADR? It is the collective description of methods of resolving disputes otherwise than through the normal Court process. Third party mediation is what ADR means to most people.
The Court today has a duty to actively manage cases and this includes encouraging parties to use an ADR procedure. Proceedings can also be stayed in order to encourage parties to try and settle by ADR or other means. If a party refuses an offer to mediate they may incur cost penalties at trial by doing so. One should be very careful before one refuses an offer to mediate a case when proceedings have been issued. The current test is to put the burden on the unsuccessful party to show that there was a reasonable prospect that mediation would have been successful. That party does not have to prove that it would in fact have succeeded. If a client is representing themselves and receives an offer to mediate I would recommend that they do not refuse such an offer without thinking very carefully about the possible repercussions of doing so!