I have to update what I said in my earlier post The other side won’t mediate, what can I do? following the latest speech by Lord Clarke of Stone-cum-Ebony.
If you were in any doubt before that a district judge can order the parties to mediate in an appropriate case then read on …
14. First of all, the CPR, through the overriding objective and the general case management power set out in CPR 1.3(e) must manage cases by encouraging parties to use ADR and facilitating its use if such is appropriate. Equally, CPR 3(2)(m) provides the court with the general case management power take any other step or make any other order in order to further the overriding objective and properly manage individual cases. Without breaching my self-denying ordinance not to refer to Halsey again this evening, I cannot but think that this provides the power, in an appropriate case and consistently with the duty imposed on the court under CPR 1.3(e), to direct parties to enter into mediation or ADR procedures in appropriate cases. In considering whether to exercise these powers, it seems to me, that the court will have to consider a number of questions. So will the parties and their advisors because of the duty imposed by CPR 1.3 to assist the court to further the overriding objective. Thus both the court and the parties are under a duty to consider whether it is proportionate to pursue their claim through the formal litigation process or whether a mediated settlement might a just way of dealing with their case. Equally, the question will have to be asked whether it is proportionate to other litigants for their particular claim, to be pursued through formal litigation, or whether it would improve access to justice for other litigants if they mediated their case: see CPR 1.1(2)(e).
The Master of the Rolls clearly believes personal injury solicitors have a major role to play …
15. These considerations lead to the conclusion that mediation and other forms of ADR should become second nature to litigators, litigants and the courts. It is surely the duty of people like you to spread the word. Education, education, education. I suggest that we should start with the law schools and the professional parties and their lawyers. For example, in the case of PI claims, if the large firms of claimant lawyers espoused mediation, it would soon be prevalent. So too, would it be prevalent if liability insurers did so.
What is your experience of mediation and case management directions?
