Parties brave (or foolhardy) enough to reject mediation who get their risk assessment wrong are extremely likely to face tough sanctions, as Tony Allen explains
- What difference the introduction of a power for courts to order unwilling parties to mediate or utilise some other form of (A)DR such as private or judicial neutral evaluation could make.
- The recruitment of judges with extensive personal experience of mediation, whether as advocates or as mediators, is inevitably going to modify their approach to parties who decline to try the process.
In Parts 1 and 2 of this series, the authority of Halsey as to whether judges could in law order unwilling parties to engage in (A)DR was examined in the light of the Civil Justice Council’s (CJC’s) June 2021 report Compulsory ADR (see NLJ, 8 October 2021, p17, and NLJ, 15 October 2021, p13). Many have regarded this part of the Halsey judgment as being obiter, since the appeal itself was not about failure to mediate when judicially
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