John O’Hare states some home truths about mediation
- A discussion of ADR in three contexts: some cases provisionally allocated to the small claims track; commercial litigation in the County Court; and claims opposed by liability insurers or by large self-insuring organisations such as local authorities or health authorities.
The label ADR is 30 years old this month. It was first used in connection with cases in the Commercial Court (Practice Statement (Commercial Cases: Alternative Dispute Resolution) [1994] 1 WLR 14, which refers to ‘mediation and conciliation’). The label and its ideology quickly spread through all parts of the High Court. At that time, the court confined itself to encouraging and facilitating it. ADR procedures had to be voluntarily entered into by the parties with outcomes, if the parties so wished, which were non-binding.
Except for early neutral evaluation (ENE), that remained the position until last November, when the Court of Appeal ruled that a court does have the power to make an order compelling parties to engage
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