COURT ORDERED MEDIATION: DRAFT PRECEDENTS

In Bradley -v- Heslin Norris J set out , in strong terms the desirability of a formal order for mediation. Here we look at the precedents available.

THE OBSERVATIONS IN BRADLEY

 In Bradley -v- Heslin [2014] EWHC 3276 (Ch)

“If in any boundary dispute or dispute over a right of way, where the dispute could not be disposed of by some more obvious form of ADR (such as negotiation or expert determination) and where the costs of the exercise would not be disproportionate having regard to the budgeted costs of the litigation, any District Judge (a) imposed a 2 month stay for mediation and directed that the parties must take all reasonable steps to conduct that mediation (whatever the parties might say about their willingness to engage in the process) (b) directed that the fees and costs of any successful mediation should be borne equally (c) directed that the fees and costs of any unsuccessful mediation should form part of the costs of the action (and gave that content by making an “Ungley Order”) and (d) gave directions for the speedy further conduct of the case only from the expiration of that period, for my own part (recognising that certainly others may differ) I think that such a case management decision would be difficult to challenge on appeal.”

RESERVATIONS ABOUT THE PROPOSED DRAFT ORDER

The one reservation that could be made about that order is the direction that “the costs of any successful mediation should be borne equally”. This can, often, be the stalling point of a mediation. In many cases it would be preferable for the court to direct that the costs of the mediation be a matter to be considered in the mediation.

THE ADMIRALTY AND COMMERCIAL COURTS GUIDE

Appendix 7

Draft ADR Order
1. On or before [*] the parties shall exchange lists of 3 neutral individuals who are available to
conduct ADR procedures in this case prior to [*]. Each party may [in addition] [in the
alternative] provide a list identifying the constitution of one or more panels of neutral
individuals who are available to conduct ADR procedures in this case prior to [*].
2. On or before [*] the parties shall in good faith endeavour to agree a neutral individual or
panel from the lists so exchanged and provided.
3. Failing such agreement by [*] the Case Management Conference will be restored to enable
the Court to facilitate agreement on a neutral individual or panel.
4. The parties shall take such serious steps as they may be advised to resolve their disputes
by ADR procedures before the neutral individual or panel so chosen by no later than [*].
5. If the case is not finally settled, the parties shall inform the Court by letter prior to
[disclosure of documents/exchange of witness statements/exchange of experts’ reports]
what steps towards ADR have been taken and (without prejudice to matters of privilege)
why such steps have failed. If the parties have failed to initiate ADR procedures the Case
Management Conference is to be restored for further consideration of the case.
6. [Costs].
Note: The term “ADR procedures” is deliberately used in the draft ADR order. This is in order to
emphasise that (save where otherwise provided) the parties are free to use the ADR procedure
that they regard

THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE

I am grateful to Elizabeth Repper for drawing my attention to the guidance in Appendix E to this guide.

Appendix E – Draft ADR Order

1. By [date/time] the parties shall exchange lists of three neutral individuals who have indicated
their availability to conduct a mediation or ENE or other form of ADR in this case prior to
[date].
2. By [date/time] the parties shall agree an individual from the exchanged lists to conduct the
mediation or ENE or other form of ADR by [date]. If the parties are unable to agree on the
neutral individual, they will apply to the Court in writing by [date/time] and the Court will
choose one of the listed individuals to conduct the mediation or ENE or other form of ADR.
3. There will be a stay of the proceedings until [date/time] to allow the mediation or ENE or
other form of ADR to take place. On or before that date, the Court shall be informed as to
whether or not the case has been finally settled. If it has not been finally settled, the parties
will:
a) comply with all outstanding directions made by the Court;
b) attend for a review CMC on [date/time].

THE UNGLEY ORDER

“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 trial 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 the reasons upon which they rely for saying that the case was unsuitable.”