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For an article in which Gary Webber shares his tips on how a representative of a party at a mediation can help the mediator help the client see "Making the most of mediation"

Court powers to encourage mediation - costs

Halsey v Milton Keynes General NHS Trust
[2004] EWCA Civ 576

The Court of Appeal has given detailed guidance on the approach that the courts should take when seeking to encourage mediation. There are two main points:
  • The courts can use strong encouragement but it cannot compel a party to submit to mediation. Rule 1.4(2)(e) defines active case management as including encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate. It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. (Dyson LJ, para 9).

  • The court will only order a successful party who has refused to mediate to pay costs where the refusal was unreasonable. The various factors to be taken into account are discussed in detail in the case. The burden is on the loser to show that the successful partys refusal was unreasonable. One of the factors that might be taken into account is any earlier encouragement that was given by the court to mediate during the case management process. The stronger the encouragement, the easier it will be for the unsuccessful party to discharge the burden of showing that the successful partys refusal was unreasonable (Dyson LJ, para 29).
The court specifically approved an order commonly used in clinical negligence cases which is in the following terms:
    "The parties shall consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.
    The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable."
Dyson LJ then went on to say:
    "This form of order has the merit that (a) it recognises the importance of encouraging the parties to consider whether the case is suitable for ADR, and (b) it is calculated to bring home to them that, if they refuse even to consider that question, they may be at risk on costs even if they are ultimately held by the court to be the successful party. We can see no reason why such an order should not also routinely be made at least in general personal injury litigation, and perhaps in other litigation too. A party who refuses even to consider whether a case is suitable for ADR is always at risk of an adverse finding at the costs stage of litigation, and particularly so where the court has made an order requiring the parties to consider ADR." (Dyson LJ at para 33)

Mediation - costs - use of "without prejudice" correspondence

Reed Executive plc v Reed Business Information Ltd
[2004] EWCA (Civ) 887

In Halsey (above) the CA held that a party will only be penalised for refusing to take part in a mediation if the refusal was unreasonable. That court has now held that in deciding whether or not a party has acted unreasonably it will not look at without prejudice correspondence. Walker v Wilsher (1889) 23 QBD 335 applied. If a party wishes to refer to correspondence when arguing for costs on the basis that the other party has acted unreasonably it is necessary to mark it without prejudice save as to costs. Jacob LJ giving the judgement also confirmed, as had been stated in Halsey, that the court will not hear evidence as to what happened at the mediation.
    "I do not regard such a conclusion as disastrous or damaging from the point of view of encouraging ADR. Far from it. Everyone knows the Calderbank rules. It is open to either side to make open or Calderbank offers of ADR. These days there is no shame or sign of weakness in so doing. The opposite party can respond to such offers, either openly or in Calderbank form. If it does so and gives good reason(s) why it thinks ADR will not serve a useful purpose, then that is one thing. If it fails to do so, then that is a matter the court may consider relevant (not decisive, of course) in exercising its discretion as to costs. The reasonableness or otherwise of going to ADR may be fairly and squarely debated between the parties and, under the Calderbank procedure, made available to the Court but only when it comes to consider costs." (Jacob L.J. at paragraph 35)

  • Towards a resolution by Martyn Liberson and Michael Lind Considers the pros and cons of mediation. Highlights the recent cases where the courts have taken a dim view of the failure of parties to mediate. Gives a landlord and tenant example where mediation resulted in a win-win solution that would not have been achieved by litigation (Estates Gazette, 14 September 2002, p151).

  • A modest proposal by David Shapiro and Robin Preston-Jones Suggests a simple method by which district judges could select appropriate cases for mediation. (Solicitors Journal, 20 September 2002, p819).

Housing disputes

Proportionate dispute resolution

Law Commission Report – Housing: Proportionate Dispute Resolution (Law Com No. 309)

The Law Commission has published its report on alternative methods of resolving disputes relating to housing matters. A major theme that runs throughout the report is in fact a plug for the government to implement the Commission's previous report on Renting Homes so as to simplify this area of the law. Other suggestions include "the ticketing" of specialist housing judges and that "stand alone" housing disrepair claims brought by tenants should be transferred to the proposed "Land, Property and Housing" tribunal which is intended to be part of the new Tribunals service.

Housing Ombudsman

The Independent Housing Ombudsman Scheme was set up in April 1997 under section 51 of the Housing Act 1996. All registered social landlords are required to be members. Private landlords may voluntarily join the scheme.

Article: "Alternative Therapy" by Dr Mike Biles, Housing Ombudman - This article explains that various different dispute methods are used under the scheme. The main area of work with which it deals is repairs (39%). There is also an associated tenancy deposit scheme, under which disputes are adjudicated on the papers. (Landlord and Tenant Review, Vol 7, Issue 2, p25).

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