Winckworth Sherwood

UK 200 2013 position: 94

Time to mediate before it’s too late?

The recent decision in Garritt-Critchley and others v Ronnan and another reminds us that if a party to a dispute refuses to engage in a form of alternative dispute resolution (ADR) such as mediation, then a punitive costs order might be made against it.

ADR is a well-established part of modern litigation. The Civil Procedure Rules govern the way in which litigation is conducted and give the courts case management powers, which include ‘encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure’.

Mediation is often characterised as a form of ‘structured negotiation’ in which the parties put their cases to a mediator and then seek to find a resolution to their dispute themselves. It is considered to be a flexible system since the process adopted is decided between the parties, and its findings are non-binding. For this reason, it can be used throughout the dispute resolution cycle, from the pre-action stage onwards — even during trial…

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