Practical Law

Faced with the 2019 novel coronavirus disease (COVID-19), everyone’s primary focus in these extraordinary times, is doing all they can to protect everyone’s health. At the same time, many are being forced to wonder about business continuation and ways that they can quickly collect aged debts or de-risk by settling disputes. Some are turning to mediation to … Continue reading Mediation update: can parties mediate by telephone? →

In 2013, Sir Alan Ward in Wright v Michael Wright suggested that it is perhaps time to review the rule in Halsey v Milton Keynes that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court. Sir Alan wondered whether some bold judge … Continue reading Mediation update: will courts soon be ordering parties to mediate? →

When a problem surfaces, many turn to mediation to help them solve it. A mediation may lead a party to review its risks and what lies ahead if it continues the dispute. The mediator may be able to facilitate a conversation that clears the air, corrects an impression or allows an appreciation of another perspective. … Continue reading Mediation update: TCC issues guidance on ADR clauses →

The Final Report of the ADR working group of the Civil Justice Council is out. Parties will wish to note what it says about the forms of ADR, awareness and unreasonable refusal. Here are some of the highlights.

As full-time mediators, we often co-mediate. In this post, we discuss why and how parties are using co-mediation. Mediation and multi-party disputes For all the well-known reasons, parties to any dispute will want to consider mediation. Where there are multiple parties, such as businesses who have contributed design, work or materials to the same project or … Continue reading Multi-party disputes and co-mediation →

Recent weeks have brought two Court of Appeal judgments on the status of costs budgets and the unreasonable refusal or failure to mediate: Harrison v University Hospitals Coventry & Warwickshire NHS Trust and Gore v Naheed and another.

In PGF II SA v OMFS Company 1 Ltd, in addressing the question of unreasonably refusing to participate in ADR, Briggs LJ made the link between parties engaging with the ADR process and, in doing so, addressing the question of when ADR should take place. Two recent dilapidations cases demonstrate that parties must now consider … Continue reading Mediation update: the question of when and costs sanction for not getting on with it →

There is no overarching statute governing mediation in England and Wales. Instead, a party who wants to know about mediation must turn to the civil procedure rules, court guides and the (now) many judgments that talk about it. Ireland is taking a different approach. Currently, the Oireachtas is considering the Mediation Bill 2017, a 24-page … Continue reading Mediation update: fundamental principles and the Irish Mediation Bill 2017 →

The courts have recently taken the opportunity to remind parties about some of the things mediation may be able to do for their case. Mediation also now gets a specific mention in the new Construction and Engineering Protocol. Here’s what has been happening.

Recent weeks have brought a further decision on settlement agreements in the form of Caroline Gibbs v Lakeside Developments Ltd.

The courts have often stressed that parties should mediate early before litigation hardens attitudes and costs become an additional aggravating factor. In Kupeli and others v Sirketi (t/a Cyprus Turkish Airlines) and another, the High Court restated the now familiar message that parties should discuss or negotiate their dispute early.

Recent weeks have brought two further decisions concerning an unreasonable refusal to mediate. The message from the courts on when to deal with a request to mediate is now clear: parties are expected to respond promptly. The message on how parties should respond is more opaque. The courts, with Halsey v Milton Keynes no doubt in mind, … Continue reading Mediation update: indemnity costs for unreasonable refusal to mediate and no dispute too intractable →

Recent weeks have seen a flurry of decisions relevant to mediation, considering issues as varied as the courts’ ability to compel parties to mediate, failure to attend a mediation and the drafting of settlement agreements.

On 1 October 2015, new far reaching regulations come into force that (subject to limited exceptions) will affect all businesses in the UK which sell goods, services or digital content to consumers. This will include many traders in the construction industry. The regulations are contained in the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and … Continue reading Are you trading with consumers? Complying with the new ADR Regulations (part 2) →

On 1 October 2015, new far reaching regulations come into force that (subject to limited exceptions) will affect all businesses in the UK which sell goods, services or digital content to consumers. This will include many traders in the construction industry. The regulations are contained in the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and … Continue reading Are you trading with consumers? Complying with the new ADR Regulations (part 1) →

With recent stark increases in court fees, new guidance from the TCC on proportionality and another case on unreasonable refusal to participate in ADR, is it time for parties to revisit the question of why they should mediate?

I’m often asked how parties can be successful at a mediation. My answer is always that there are two rules parties need to follow: Rule 1: prepare for a mediation and not trial, arbitration, adjudication or anything else. Rule 2: prepare for your specific mediation, and not just any mediation. Now, although these two rules do sound … Continue reading Two rules and some practical tips for mediation →

Often parties engaged in proceedings want to park those proceedings while they turn their attention to alternative dispute resolution (ADR). In some types of dispute, judges favour a stay for ADR. Indeed in any boundary, right of way or other neighbour dispute (as I discussed last month in relation to Norris J’s decision in Bradley … Continue reading Parties in the TCC: prepare for trial and to settle →

The courts have long urged neighbours to seek to resolve disputes by using mediation. Indeed in Bradford v James (a boundary dispute), Mummery LJ said that parties should attempt mediation at the beginning of the dispute: “…and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too … Continue reading Why try to resolve a neighbour dispute using mediation? →

In Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C4i) Ltd, BAE successfully argued that its interpretation of a licensing agreement was correct. Northrop then argued that BAE’s costs should be reduced by 50% because BAE had unreasonably refused to mediate. While Ramsey J found that BAE had unreasonably refused to mediate, for other reasons, … Continue reading TCC decides unreasonable refusal to mediate but for other reasons imposes no costs sanction →

This post considers some of the advantages (financial and otherwise) of mediating, as well as looking at how best to prepare for the mediation of a delay claim and how best to present a delay claim at a mediation.

Mediation remains a hot topic. Section 7 of the TCC Guide (ADR) has just been revised and there are two recent cases about an unreasonable refusal to engage in ADR, R (on the application of Paul Crawford) v The University of Newcastle-upon-Tyne and Garritt-Critchley v Ronnan.

Mediation is fast becoming a popular method of alternative dispute resolution in many areas of law. The courts’ support for mediation is evident from the many decisions, including PGF II SA v OMFS Company 1 Ltd  (which I looked at last year), emphasising that parties should attempt to resolve their dispute early and without being encouraged … Continue reading Mediation: some frequently asked questions →

Almost ten years ago, the Court of Appeal addressed, as a matter of principle, the extent to which it was appropriate for the court to use its powers to encourage civil litigants to settle their disputes. In Halsey v Milton Keynes General, it held that a successful party can be deprived of all or part … Continue reading Warning about unreasonably refusing to participate in ADR as Halsey principle extended →

Public procurement is a hybrid of commercial and public law. It comprises a set of statutory rules, based on European Union law principles of non-discrimination and transparency, which are designed to ensure fair competition between companies from different member states. If a public body (a “contracting authority”) infringes the rules, an economic operator who may … Continue reading The use of mediation to resolve public procurement disputes →

Two recent High Court decisions (AB and another v CD Ltd and Newbury v Sun Microsystems) illustrate the importance of knowing early each and every settlement term either desired by your client or necessary to make the settlement work.

In April 2013, I wrote about mediation and costs management, which were hot topics as a result of the new Civil Procedure Rules. Since that blog, there have been three cases of particular interest in relation to mediation and costs management.

Last time, I looked at recent developments in mediation, including in light of the new Civil Procedure Rules. This time, I’m looking at the mediation of neighbour disputes. Neighbour disputes often have two common features: hostility and (if the dispute goes as far as trial) the potential for huge legal costs to be run up. … Continue reading Advantages of mediation in neighbour disputes →

Jackson LJ’s final report recommended that “there now needs to be a single authoritative handbook, explaining clearly and concisely what ADR is” and that “most judges and litigators would have the current edition of the proposed handbook on their bookshelves”. The Jackson ADR Handbook was published in April 2013. It contains a foreword from Lord Dyson … Continue reading The Jackson ADR Handbook really is essential reading →

Mediation is a hot topic at the moment. One reason for this is because of Sir Alan Ward’s judgment in Wright v Michael Wright Supplies Ltd; another is the changes to the Civil Procedure Rules (CPR), which came into force at the beginning of April.

To the surprise of the man on the street, relatively low value disputes are difficult to litigate cost effectively. Often the value of the claim is soon exceeded by each party’s legal costs. At the end, when one side comes second, it is presented with a very large bill. Mediation offers the parties a way to avoid this.

Claims for interest are particularly contentious at present as: The base rate is 0.5%. Banks and building societies are only offering low interest rates on savings. The current economic climate has led some to bring previously forgotten claims on the eve of the limitation period expiring.

At the time of issuing proceedings, the parties may or may not have complied with the Pre-Action Protocol for Construction and Engineering Disputes (Protocol). Limitation issues, for example, may have prevented compliance. Alternatively, the parties may just not have entered into the spirit of the Protocol.