Over the years there has been a shift to use alternative dispute resolution. [ADR] The latest changes to the Civil Procedure Rules 1998 on the 1st October 2024. requires that the courts must actively manage cases. Active management includes “ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution” CPR 1.4.2 (e). Specially, CPR 3.1 (o) provides that the court has power to order the parties to engage in alternative dispute resolution.
To be clear, the court can now order parties to attend mediation. A few weeks after the rules were amended, the power to order mediation was exercised in DKH Retail Limited and others v City Football Group Limited 2024 2024 EWHC 3231, whereby parties were ordered to mediation despite opposition from the defendant.
This case had all the hall marks of a case that was highly likely to go to trial. The parties had spent hundreds of thousands of pounds in legal costs and the trial was imminent. It was the claimant’s application for the court to order mediation. The Claimant’s approach was that the case was being capable of being settled in mediation as everything was open to negotiation and the issues were narrow. The defendant strenuously opposed the application on, what I would say are the usual grounds to object to mediation;
– there was no real prospect for success,
– the parties had experienced solicitors and negotiations had failed,
– the parties needed a judicial determination,
– a great deal of legal costs had already been incurred by the parties and
– the trial was imminent.
The judge rejected the defendant’s arguments and ordered the parties to attend mediation in December 2024. The hearing was the 21st of November 2024.
Was the judge right to compel mediation? The postscript to the Judgement dated the 13th of January 2025, indicates that the parties resolved matters.
What is interesting, even though there was a strong opposition to mediation, and one party took the view that mediation was pointless, it was successful!
Whether parties like it or not, there is likely to be an increase in the court using its power to order mediation. This case brings home that mediation does have something to offer even in those cases where one party is entrenched and closed to mediation.
Please contact the clerks@becket-chambers.co.uk for more details of Becket Chambers mediation service.
