By Luke Morgan, Supervising Director, Palmers Solicitors
The move towards alternative dispute resolution (ADR) as a priority for the Courts is undeniable – now acting as the expected first resort in the majority of cases.
This is perhaps best illustrated by a recently reported case from Nuneaton County Court towards the start of June. The defendants, spouses embroiled in a property dispute with a family member, although successful in their initial claim, were not allowed to fully reclaim their costs due to their “unreasonable” unwillingness to engage in mediation.
The sitting Judge, His Honour Judge Mithani KC, applied 25 per cent penalty to the total costs the defendants could reclaim – citing an “out of hand” rejection of repeated offers of mediation.
Three offers of mediation were made in total, throughout the course of the matter. One was ignored and two subsequent offers were dismissed as fruitless and unsuitable for the nature of the dispute.
There have been numerous arguments over whether this ruling was fair or not, but that isn’t the only point to be drawn from this outcome.
Mediating disputes
This outcome illustrates that court proceedings are becoming a secondary option for resolving disputes, a culmination of a long-running trend towards the primacy of ADR.
As someone who has been in the mediation field for many years, the advantages of this are clear, for both the court system and individuals.
The major benefit of relying on ADR over litigation in the first instance is encouraging constructive discussion which aims to quickly reach a mutually satisfactory conclusion while preserving relationships, which often isn’t possible with litigation.
Additionally, we know that court proceedings can be costly for the defendant, the claimant and the courts themselves, meaning it is in all parties’ financial interests to avoid litigation where possible – keeping ‘possible’ as the operative word.
Opposition to mediation
Mediation has its fair share of opponents. As argument in the above case, Conway V Conway & Anor, mediation isn’t always suitable to resolve a matter.
In some cases, it is obvious even to those involved that mediation is unlikely to reach a constructive solution, in which case it will be perceived as wasted time.
While this is an understandable sentiment, the purpose of mediation is to help disputing parties reach an accord, and mediators are trained to support difficult working relationships.
Furthermore, there is the perception that the requirement for mediation is denying claimants access to the court system and the powers of litigation. To this, I would assure all parties that mediation being a substitute for litigation is, in many cases, a positive and constructive move.
The court system is still in place for those cases that need it – mediation only serves to take the pressure of it and preserve relationships where possible.
To discuss mediation and how it can help you, please get in touch with me at LukeMorgan@palmerslaw.co.uk.