FINANCIAL & LEGAL
BEWARE AND BEHAVE! Those who fail to take Alternative Dispute Resolution (ADR) seriously must expect the worst, says Professor Dominic Regan, Frenkel Topping Group’s Director of Training & Insight
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n 2013 Briggs LJ, now a member of the Supreme Court, held in PGF that a defendant who had merely ignored an invitation to engage in ADR had acted unreasonably. Accordingly, the defendant was Dom Regan denied tens of thousands of pounds in costs to which it was otherwise entitled. High Court Judges in 2020 ordered recalcitrant defendants to pay indemnity costs solely because they had rejected ADR outright. In January this year, Sir Geoffrey Vos became the new Master of the Rolls, the most powerful Judicial position in the world of Civil Procedure. He is a dynamic character and has a reputation for getting things done. Take it from me that he thinks the Courts got it wrong back in 2004 when it was decided in HALSEY that the Court had no power to order parties to engage in mediation. The time is ripe for a fundamental rethink. This issue shot to the top of the reform agenda after a case Whilst there are various There will be cases where a party or called LOMAX V LOMAX in 2019. parties will refuse to engage. What The Appeal Court held that a modes of ADR, the firm happens in a mediation is protected Judge could order parties to judicial favourite is by the shroud of Privilege. The engage in another process, Early process can only be opened up with mediation. A mediator is a Neutral Evaluation, even if they the consent of both parties. Those did not want to. The reformers neutral - a go between. They misbehaving are never going to agree. pounced and asked why then cannot be partisan nor I suspect that things may move can’t the Court equally order parties to get together through judgmental. Their function is quickly on the reform front. It is imperative that any suggestion of Court managed mediation? to find common ground ADR is always acknowledged. It I worked for 7 years with between the parties may be that the suggestion is made Sir Rupert Jackson, advising on prematurely. If so, explain your aspects of reform. He had not position. Outright rejection is a suicide note. You have a scintilla of doubt that ADR was a fundamental part of been warned. dispute resolution. A successful outcome would mean big savings in costs. The anxiety and uncertainty of trial would be avoided. HHJ Simon Brown QC described going to trial as akin to a visit to a casino. Those entering always believe they will be successful but one party will leave disappointed. Whilst there are various modes of ADR, the firm judicial favourite is mediation. A mediator is a neutral - a go Tel: 0161 886 8000 between. They cannot be partisan nor judgmental. Their Web: www.frenkeltopping.co.uk function is to find common ground between the parties. Email: contactus@frenkeltopping.co.uk It would be naive to pretend ADR is a universal panacea.
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