Zen Thompson of our Alternative Dispute Resolution (ADR) Team looks at how a recent case reinforces the need to consider and engage in ADR.
Before issuing an application at court in relation to family issues, there is an expectation that the applicant has considered mediation, but in non-family civil proceedings there is a stronger obligation on both parties to seriously consider and engage with Alternative Dispute Resolution (ADR) processes, including mediation. With the court system coming under increasing pressure, it may be that the courts are considering increasing the pressure on parties to look at ADR in family cases as well.
In the recent civil case of Laporte v The Commissioner for the Police of the Metropolis (2015), Turner J looked at the factors which the court looks at to assess if a refusal to engage in ADR is unreasonable:
- If the nature of the dispute is unsuitable for ADR
Here, the dispute was on a legal principle, but that did not mean that ADR was unsuitable.
- If the defendant perceives that the applicant’s case is extremely strong
It can be reasonable to refuse to engage in ADR.
- If other settlement methods been attempted
Here, no offers had been made and so ADR should have been tried.
- If the costs of mediation are disproportionate
It is extremely unlikely that the costs of mediation would be more than court costs.
- If mediation would cause delay
There is no reason why mediation cannot take place quickly.
- If mediation has a reasonable prospect of success
This would only be where one party refused to negotiate, which is not the same as tactical positioning which can still allow for a negotiated outcome.
In this case, the court felt that the defendant had unreasonably refused to engage in ADR, and penalised the defendant on legal costs.
At Nockolds we have several members in our ADR team, including Zen Thompson who is a family and civil mediator, Pete Dodd who is a family mediator, and Alex Haddad who is a civil mediator. If you would like to discuss how this case impacts on your situation, please call us on 01279 755777.