Think carefully before declining ADR outright, warns Dominic Regan
Alternative dispute resolution (ADR) is hot. It is not new. However, what we have seen recently is a determined legal push to compel parties to resort to one particular form of ADR and that is mediation.
Halsey
The prevailing judicial view is that mediation is most attractive for it involves a neutral, an outsider, who seeks to get the parties to compromise. Contrast this with the round table where the representatives are just that, fighting their corner to the bitter end. An unjustified failure to participate could now have enormous costs consequences with the winner losing to the loser!
The definitive judgment about ADR is that of the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 4 All ER 920, although one member of that bench has since voiced some doubts about it, as will be seen later. What Halsey did was to emphasise the desirability of using mediation or some other form of ADR to curtail a dispute and so avoid the miserable delay and expense of trial.
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