Reject Alternative Dispute Resolution at your peril

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

In 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 called LOMAX V LOMAX in 2019. Whilst there are various There will be cases where a party or The Appeal Court held that a modes of ADR, the firm parties will refuse to engage. What Judge could order parties to engage in another process, Early judicial favourite is happens in a mediation is protected by the shroud of Privilege. The Neutral Evaluation, even if they mediation. A mediator is a process can only be opened up with did not want to. The reformers pounced and asked why then can’t the Court equally order neutral - a go between. They cannot be partisan nor the consent of both parties. Those misbehaving are never going to agree. I suspect that things may move parties to get together through judgmental. Their function is quickly on the reform front. It is Court managed mediation? I worked for 7 years with to find common ground imperative that any suggestion of ADR is always acknowledged. It Sir Rupert Jackson, advising on between the parties may be that the suggestion is made aspects of reform. He had not prematurely. If so, explain your a scintilla of doubt that ADR was a fundamental part of position. Outright rejection is a suicide note. You have dispute resolution. A successful outcome would mean been warned. 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 between. They cannot be partisan nor judgmental. Their Tel: 0161 886 8000 function is to find common ground between the parties. Web: www.frenkeltopping.co.uk

It would be naive to pretend ADR is a universal panacea. Email: contactus@frenkeltopping.co.uk