International Journal of Research and Review Vol.7; Issue: 11; November 2020 Website: www.ijrrjournal.com Review Paper E-ISSN: 2349-9788; P-ISSN: 2454-2237

Critical Examination of Alternative Dispute Resolution

Isaac Olaitan Okeya

Management Consultant Liverpool UK, Former Dean Faculty of Management Sciences, College of Technology, Esa Oke, Nigeria and Former Controller Owena Bank Plc. Nigeria.

ABSTRACT INTRODUCTION It has been observed from survey This research work will centre on, among report that most people desire from our many other things, matters which broadly modern justice system, is to avoid going to affect “Alternative Dispute Resolution.” trial. Most problems associated with Alternative disputes resolution, is popularly litigation include illiteracy of the and known to be called ADR, has been noted to have embraced different methods of resolving the legal system due to its complicated different disputes, although it is commonly language and quaint procedures, and the ill viewed as a form of assisted negotiations with a faith in the court‟s fairness or its efficiency 2 central objective of dispute resolution: as a means of resolving disputes. Also, this alternative to traditional processes used by the is associated with factors such as high costs, law. Therefore, ADR is more of a consensual the endless delays, the tottering heaps of process, that is, it requires consent from the papers which take over their lives; therefore, parties involved, and its outcome are non- litigants seem to prefer a simpler approach: binding, so as such the dispute might not have a process conducted in plain language, been resolved. based on common sense, and geared to Prior to the development of Alternative dispute getting problems sorted out around a table resolution, disputes are often resolved by courts through litigation process, and in most times, rather in the hot atmosphere of the court room.3 justice is not served. So ADR in its core field, 4 encourages litigants to avoid going to court, and Lord Woolf, in his Interim Report , in some cases, with appropriate advice, avoid described how the use of ADR had grown such legal processes altogether. worldwide and how it should be fostered. The expression “alternative dispute Litigation might not be best in all cases, and resolution” is also described in the glossary to there was a need to increase awareness of the Civil Procedure Rules as a “collective ADR.5 In his final report in 1996, Lord description of methods of resolving disputes Woolf argues that where there was a otherwise than through the normal trial satisfactory alternative to the resolution of procedure”. In this broad sense, of course, disputes in court, the courts should ADR is by no means a novel phenomenon, encompassing everything from the last-minute encourage the use of this alternative. Court “deal” at the door of the court to a formal staff and judges should know about the arbitration.1 forms of ADR that existed and what could be achieved through using ADR. At the case Keywords: Alternative dispute resolution, consensual process, assisted negotiations, non- 2 A. Acland, Resolving Disputes Without Going to binding and alternative to traditional processes. Court, (London: Century Ltd, 1995), p. 1 3 ibid 4 “Access to Justice”, 1995 5 H. Brooke, “Mediation in personal injury and 1 M. Supperstone et al, “ADR and Public Law”, clinical negligence cases”, (2008) 4, Journal of (2006) sum, Public Law, pp. 299-319 Personal Injury Law, pp. 296-307

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management conference and the pre-trial value. In 1990, the non-profit Centre for review, the parties should state whether Effective Dispute Resolution (CEDR) and ADR has been discussed and if not, why the ADR Group entered the ADR not. In deciding on the future conduct of a marketplace, and they are still among the case, the judge should be able to take into market leaders, although there are about 50 account a litigant's unreasonable refusal to accredited civil mediation providers today.10 try ADR. He added that the Government So far as court-based ADR in the should also treat it as one of their UK is concerned, the beginnings occurred responsibilities to make the public aware of with the first Commercial ADR Company, the possibilities which ADR offers.6 the International Dispute Resolution (IDR) Although, it was suggested that the was introduced in Europe, in the early American style should be considered, by 1990s, when parties were required to making ADR compulsory, but this opinion exchange lists of neutral individuals; to try was refused.7 in good faith to resolve their dispute by However, Lord Woolf's ADR; or to take serious steps to resolve recommendations have become both their dispute by ADR. The litigation might familiar and generally accepted by be stayed while these efforts were made.11 practitioners. Therefore, the Report In the 1970s, there was an increasing concluded that the English civil justice concern about the costs and delays in the system was: legal system, and the tainted effect it has on everything from premiums to “… too expensive in that the costs often general consumer cost.12 According to Sir exceed the value of the claim; too slow in Lightman, this has given rise to issue of bringing cases to a conclusion… too how to provide the protection of the law unequal… too uncertain … and too 8 where the citizen does not have the means to adversarial…” pay for such protection, or cannot afford the

Alternative dispute resolution risk of losing, and in consequence incurring the risk for the opponent‟s costs and of became the focus of much attention during 13 the 1990s. The principal form of ADR consequent bankruptcy. nowadays is mediation. Other variants Amongst the merits associated with include conciliation, early neutral evaluation ADR, it is faster and cheaper than litigation and mini-trials. There is also the traditional but if it is unsuccessful in resolving the technique of inter-party negotiation--a disputed issues, it may only increase the technique which for many years has brought cost and delay in resolving such dispute. about the settlement of the majority of all Therefore, ADR may enable parties to settle civil cases commenced in the High Court.9 disputes which could not be resolved by As court-based ADR as well as ADR conventional inter-party negotiation. Also, initiated outside the court process, began to in the case of disputes which are going to develop across the Atlantic, English settle eventually, ADR may facilitate earlier commercial started to realise its resolution (thus avoiding door-of-court settlements). Again, ADR may lead to forms of resolution, which go beyond what the 6 Ibid, p. 297 7 Lord Phillips C.J, “Alternative Dispute Resolution: An English Viewpoint”, (2008) 74(4), Arbitration, pp. 406-418 10 Brooke, “Mediation in personal injury and clinical 8 K. Conway, “ADR- Does It Work in Landlord and negligence cases”, p. 297 Disputes?”, (2005) 9(1), Landlord and Tenant 11 Brooke, “Mediation in personal injury and clinical Review, pp. 7-10 negligence cases”, p. 297 9 J. Jackson, “Address by Jackson J. to TECBAR, 12 Acland, Resolving Dispute, p. 14 TeCSA and SCL”, (2005) 21 (4), 13 G. Lightman, “Mediation: an Approximation to Journal, pp. 265-274. Justice”, (2007) 73(4), Arbitration, pp. 400-402

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court could order, and successful, ADR is resolution will be possible. However, in quicker and cheaper than litigation.14 those categories of case which are suitable, There exist, however, some ADR makes an important contribution to disadvantages of ADR, which includes, by achieving early settlement. Successful definition, ADR cannot result in a binding mediation depends heavily on the quality outcome. Also, if ADR is unsuccessful, the and skills of the mediator. Proper specialist process has simply increased the costs and training is required by all who practise as delay of the litigation. And even if ADR is mediators.18 successful, the outcome may not coincide with the legally correct resolution of the MEDIATION dispute. 15 However, it has been noted that, of It is thus, clear from the growing all the alternatives ADR has on offer, by far popularity of ADR that there is a swathe of the most widely used is „Mediation‟, due to cases in which, from the litigants' point of the fact that it is neutral, independent, view, the advantages of ADR substantially flexible and effective of ADR processes.19 outweigh the disadvantages. In March 2001, The Centre for Effective Dispute the Government gave an “ADR pledge”. Resolution, gave an accepted definition of This included a commitment that ADR mediation20as: would be “considered and used in all suitable cases whenever the other party “....a flexible process conducted accepts it”. Subsequent monitoring shows confidentially in which a neutral person that this pledge has been honoured. In the assists the parties in working towards a financial year 2002-03, there was a massive negotiated agreement of a dispute or increase in the use of ADR in disputes difference, with the parties in ultimate involving government bodies. It has been control of the decision to settle and the estimated that this saved the public purse terms of resolution.” over £6 million in costs.16 17 Therefore, mediation can be As Lord Phillips noted that : described as processes by which impartial

“....That was my first lesson in the merits third parties assist two or more parties of ADR. It avoids the trauma of court resolve their conflicts. The parties, however, proceedings. If.....then there is no decide the terms of any agreement reached. Thus, mediation is said, to usually focus on alternative to alternative dispute 21 resolution, and in the first 30 years of my the future rather than the past behaviour. life in the law, the only form of ADR was Historically, mediation is quite a negotiation....” recent arrival in the judicial arena, and it was noted to have originated in the United Unfortunately, despite the growing States of America in the concluding half of use of ADR, there is only a small amount of the twentieth century. It has, however been serious research into its effectiveness. The noted that in the United States, there are Second Report of the Commercial Court different reasons for resolving disputes Committee reveals that many cases in the without recourse to litigation. Hence, a Commercial Court simply do not lend number of states have been observed, themselves to ADR may be, because the parties need the court's decision on a point 18 Jackson, “Address by Jackson J”, p. 268 of law or because no form of consensual 19 Acland, Resolving Dispute, p. 2 20 14 Jackson, “Address by Jackson J”, p. 267 http://www.cedr.com/CEDR_Solve/services/mediati 15 Jackson, “Address by Jackson J”, p. 267 on.php, 28th April , 2010] 16 ibid 21 M. Liebmann, Community and Neighbour 17 Lord Phillips C.J, “Alternative Dispute Mediation, (London: Cavendish Publishing Ltd, Resolution”, p.406 1998), p. 2

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enthusiastically embraced the idea of ADR, is private and confidential way of resolving and thus considering it in any judicial a dispute; it is informal, voluntary, and it is procedure. In English courts‟ enthusiasm for a process that those involved can control.25 mediation has been much more muted and Thus, parties on both sides are directly the growth of the term “court induced involved in assessing the risks of litigation mediation” has been attributed in large with the help of a neutral third party. In measure to the enthusiasm of a particular, the claimants and their partners comparatively small number of judges.22 are directly involved in the settlement The traditional approaches to civil process. This human factor is extremely disputes usually lead to a decision in favour important. Mediation however provides a of one of the parties involved. This has been forum where the claimant is treated like an noted, not to have solved the problem, intelligent adult; is allowed to say what they according to the mediators, the process of want to say; and to ask all the questions that mediation asserts that a „win-win‟ solution any intelligent adult would want to ask can be reached.23 before taking an important decision.26 Further, some mediators feel that As earlier stated, mediation is mediated negotiation is appealing because it voluntary. It is vital to note that parties addresses many of the procedural should be encouraged to participate in shortcomings of the most traditional mediation freely, and not because they have approaches to resolving resource allocation been ordered. The hallmark of procedures, conflicts. It allows for more direct and perhaps the key to their effectiveness in involvement of those most affected by individual cases, is that they are processes decisions. voluntarily entered into by the parties in The purpose of mediation is obvious. disputes with the outcomes, if the parties so Mediation can be a lot cheaper and quicker wish, which are non-binding. Consequently than a court hearing and, in the event of a the court cannot direct that such methods be successful mediation, court time is saved. used but may merely encourage and Further, the process is designed to give the facilitate.27 parties a better understanding of their Although, the mediation process is respective cases and it may lead to a more non-binding, both parties initiate a joint amicable settlement than one simply memorandum or a „head of agreement‟, negotiated between counsel or solicitors. In setting out their concluded agreement.28 In mediation, the parties are not so restricted light of this form, such result of mediation by the terms that they can reach and it may process, is however confidential. It is be that something agreed between the conducted in private, and the mediator will parties as a term of the settlement, which not divulge the occasion or its outcome to might not be feasible in a court order, turns anyone outside the mediation without the out to be what breaks the logjam and brings agreement of those involved. In addition, about a settlement.24 private meetings between the mediator and Also, mediation is noted to offer each person separately during the mediation many attractions in addition to that of are also confidential.29 avoiding the cost and trauma of litigation. It Finally, mediation is without prejudice, that is, the parties are allowed to 22 Lord Phillips C.J, “Alternative Dispute Resolution”, p.408 23 B. Van de Klundert and P. Glasbergen “”The Role 25 Lord Phillips. “Alternative Dispute Resolution”, p. of Mediation in the Process of Integrated Planning”, 407 in P. Glasbergen (ed) Managing Environmental 26 Brooke, Mediation, p. 301 Disputes, (The Netherlands: Kluwer Academic 27 Lord Phillips. “Alternative Dispute Resolution”, p. Publishers, 1995), pp. 69-89 414 24 N. Cooksley, “Mediation- needed in PI?” (2004) 28 Acland, Resolving Dispute, p. 34 3, Journal of Personal Injury Law, pp. 225-228. 29ibid

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express themselves freely, to make offers use ADR through the potential sanction of and demands as they desire, without fear costs. The encouragement and facilitation of that this will prejudice later legal ADR by the court is an aspect of active case proceedings, in case the dispute is not management, which in turn is an aspect of resolved.30 Further, mediation is designed to furthering the overriding objective. By CPR do more than simply settle a dispute; 1.3, the parties to a dispute are themselves functions best when there are fewest under a duty to assist the court in furthering constraints on the parties. the overriding objective. The unreasonable Obviously, there are also some down refusal to engage in ADR may constitute a sides to mediation. This is due to the fact breach of this duty. In any event, a refusal to that mediation is really suited for two use ADR is certainly an aspect of the parties who are, actually in disputes. As conduct of the parties which the court is Lord Phillips again noted, amongst the entitled to take into account in deciding unfortunate disadvantages of mediation, is what orders to make as to costs under CPR the fact that it does not produce a judgement 44.3(4) (a). Further, under CPR 44.5, in of the court setting the individual litigant‟s deciding the amount of costs to be ordered right. This has been noted to be associated to be paid, the court must have regard to the to lack of education in mediation process.31 conduct of the parties, including the efforts made, if any, before and during the CIVIL PROCEDURE RULES proceedings in order to try to resolve the The Civil Procedure Rules under dispute. 34 r.1.4, was noted to have boosted the practice In Hurst v. Leeming,35 Lightman J in of mediation concept of the court's duty his ruling gave a number of reasons why the to manage cases to include encouraging the defendant‟s refusal for an offer of parties to co-operate with each other in the mediation, were without validity. It was conduct of the proceedings; encouraging the noted, however, that it was reasonable to parties to use an ADR procedure if the court reject the request for mediation because considers this to be appropriate; facilitating such mediation may have a high possibility the use of ADR; and helping the parties to of failure. In general, it does not seem right settle the whole or part of the case.32 The to consider the argument that a mediation practise direction, 2005 gave the court the process may not succeed as a reason for a power to consider ADR, as follows:33 refusal to consider mediation. Typically for a mediation process to succeed, it must be “[I]n such cases as the court think tried.36 appropriate, the court may give As earlier emphasised, Alternative directions requiring the parties to dispute resolution (ADR) has become consider ADR....” increasingly popular over the last few years

Although the Court of Appeal has and, the justice system also has shown a now held that the language of great deal of support from the Court of “encouragement” used in CPR 1.4(2) (e) Appeal to the lower courts, the Department does not confer upon the court a power to of Constitutional Affairs and the Civil direct the parties to a dispute to enter into Justice Council. The true importance of ADR, the courts in practice have the ability mediation is expressed by the attitude of to place significant pressure on parties to solicitors and barristers whom have undergone different courses, so as to qualify as mediators. The courts in their own 30 ibid 31 Lord Phillips. “Alternative Dispute Resolution”, p. 420 34 Supperstone, “ADR and Public Law” p. 301 32 Brooke, Mediation, p. 297 35 [2001] EWHC 1051 33 Lord Phillips. “Alternative Dispute Resolution”, p. 36 Lord Phillips. “Alternative Dispute Resolution”, p. 410; Pt 29 PD 4.10(9) 413

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different agendas have introduced their own failure to resort to ADR41. He, however, pilot schemes and, as the authorities and noted at para. [13]: case law will show in this paper, that parties who are considered to have refused to “In deciding whether to deprive a participate in mediation unreasonably, are successful party of some or all of his costs increasingly likely to be penalised in costs.37 on the grounds that he has refused to This is, however the next focus of this agree to ADR, it must be borne in mind paper. that such an order is an exception to the In review of the decision of the general rule that costs should follow the Court of Appeal‟s judgment in Halsey v event. In our view, the burden is on the Milton Keynes General NHS Trust38 on unsuccessful party to show why there mediation and the costs consequences of should be a departure from the general refusing to consider or to take part in rule. The fundamental principle is that mediation, it was shown that mediation is such departure is not justified unless it is appropriate, and parties are to be wary of shown (the burden being on the refusing to consider mediation without good unsuccessful party) that the successful reason, as costs sanctions may be imposed party acted unreasonably in refusing to on parties that ignores a chance of agree to ADR. We shall endeavour in this mediation. Although, the Court of Appeal judgment to provide some guidance as to also expressed its view that compulsion was the factors that should be considered by likely to be regarded as an unacceptable the court in deciding whether a refusal to constraint on the right to access to the court agree to ADR is unreasonable.” under Art.6 of the European Convention of Thus, Dyson LJ identified the following Human Rights, and that the court's role was factors as being relevant to whether it was to encourage rather than compel ADR. reasonable to refuse an invitation to In Halsey v Milton Keynes General 39 mediate, as: NHS Trust , the court held that the burden was on an unsuccessful party to show why  The nature of the dispute. there should be a departure from the general  The merits of the case rule on costs so as to deprive the successful  The extent to which other settlement party of some or all of its costs on the methods have been attempted; grounds that it had refused to agree to ADR.  Whether the costs of the ADR would be The burden was to show that the successful disproportionately high; party had acted unreasonably in refusing to  Whether any delay in setting up and agree to ADR. However that was a case in attending the ADR would have been which the action against the successful party prejudicial; had been dismissed, the offer had come late  Whether the ADR had a reasonable in the day, the court had not suggested ADR prospect of success and it would have been unlikely to achieve anything.40 Thus, the judgment goes furthers to In giving his judgement, Dyson LJ consider each of these factors in turn, commented on the use of adverse cost commenting on how they should be orders as a sanction for an unreasonable approached by the courts. In some respects, the Court's observations restate truths that were already well recognised. Thus, in relation to „the nature of the dispute‟, the judgment points out what even the most 37 Cooksley, “Mediation- needed in PI?”, p.225 38 [2004] 1 WLR 3002 39 ibid 41 Lord Phillips. “Alternative Dispute Resolution”, p. 40 Cooksley, “Mediation- needed in PI?”, p.227 414

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committed devotees of ADR have always prospect of success, not on the party accepted, namely that mediation is refusing mediation to show that mediation unsuitable for certain situations: for would not have had a reasonable prospect of instance, in a situation where a definitive success.45 This judgement has been said to legal ruling is required or where injunctive be controversial, and however, a wrong relief is essential to protect the position of analysis. one party42. However, the Commercial Further comments on other factors, Court Working Party on ADR stated in however, the Court of Appeal's 1999:43 pronouncements represent something of a departure from earlier authority. “The Working Party believes that there Considering the factor of „merits of the are many cases within the range of case‟, the Court asserts at [18] that:46 Commercial Court work which do not lend themselves to ADR procedures. The “...a party's reasonable belief in the most obvious kind is where the parties strength of his case is relevant to the wish the court to determine issues of law question of whether he has acted or construction which may be essential to reasonably in refusing ADR. If it were the future trading relations of the parties, otherwise, there would be considerable as under an on-going long term , scope for the exploitation of possible costs or where the issues are generally sanctions in the pursuit of unmeritorious important for those participating in a claims, a danger which the courts should particular trade or market. There may be particularly astute to guard against...” also be issues which involve allegations of fraud or other commercially disreputable However, Sir Lightman in a different conduct against an individual or group opinion of the judgement of the Court of which most probably could not be Appeal in Halsey‟s case noted that for an successfully mediated.” approximation of justice to be achieved, the obstacle placed by this judgement must be Other examples falling within this removed. He, then differ in the sense that category are cases where a party wants the the burden is not on the party against whom court to resolve a point of law which arises the sanction is sought to prove that his from time to time, and it is considered that a refusal was unreasonable.47 binding precedent would be useful; or cases Further, in his critique, Lightman where injunctive or other relief is essential described the propositions in the judgement to protect the position of a party. But in our of the court of Appeal as unfortunate, wrong view, most cases are not by their very nature and unreasonable. In the first proposition in unsuitable for ADR.44 relation to the European Convention, he However, Dyson LJ agreeing with noted that48: Lightman J, noted that it was not unreasonable to refuse mediation if by “...the court appears to have been reason of the intransigence of other party, uninformed about the mediation process mediation had no prospect of success. He and the distinction between an order for held that the burden was on the party mediation and an order for arbitration or seeking to avoid paying costs to show that some other order which places a mediation would have had a reasonable permanent stay of proceedings. Thus, an

42 I. Grainger, “The Costs Consequence of a Failure 45 Lord Phillips. “Alternative Dispute Resolution”, p. to Mediate”, (2004) 23(Oct), Civil Justice Quarterly, 415 pp. 244-247 46 Grainger, “The Costs Consequence of a Failure to 43 Halsey v. Milton Keynes General NHS Trust Mediate”, p. 246 [2004] EWCA Civ 576, Para. [17] 47 Lightman, Mediation, p. 401 44 iibid 48Lightman, Mediation, p. 402

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order for mediation does not interfere from the Court of Appeal's decision in with the right to a trial: at most it merely Halsey v Milton Keynes General NHS imposes a short delay to afford an Trust,53 there has until recently been opportunity for settlement, and indeed relatively little discussion or application of the order for mediation may not achieve the principles it sets out, except in the small that purpose, for the order for mediation flurry of cases that considered these may require or allow the parties to principles. proceed with preparation for the trial; In Nigel Witham Ltd v. Smith & and also the court of Appeal appears to Isaac54, Judge Coulson Q.C., having be left in the dark as to the practice of identified the defendants as the successful ordering parties to proceed to mediation party, assessed the application of Halsey at regardless of their wishes is prevalent para.[8] that: elsewhere throughout the commonwealth, the United States and the “...Dyson LJ stressed that a departure world at large...” from the general rule on costs was not justified unless it had been shown that the In line with the second proposition successful party had acted unreasonable as to the onus of proof of reasonableness or in refusing to agree to ADR...” unreasonableness, he (Lightman), further noted that49: However, that was not the position in this case, as the judge noted at para. [9], “The decision as to onus must be guided the position which arose in the present case by consideration of three factors.... All was entirely novel: these factors point in the opposite direction to that taken by the Court of “ ....the point now raised … on behalf of Appeal.” the Claimant, is not that the Defendants refused to mediate at all, but that they However, Sir Anthony Clarke only consented to mediate very late in the M.R50, noted that in his opinion, process, when the vast majority of the compulsory referral to mediation did not costs had already been incurred. That breach the European Convention on Human raises the novel question as to the extent Rights, and that the courts should be ready to which, as a matter of principle, the to direct that mediation takes place, court should have regard to such matters whenever appropriate.51 dealing with costs.” In addressing the issue of Dyson LJ‟s judgement infringing with Art. 6 of the It was noted in an article that, on the European Convention on Human Right, facts of Nigel Witham‟s case, those Lord Phillips noted that the European exceptional circumstances did not arise. Commission did show vast support for This was due to the fact that, it was evident mediation although parties cannot be in respect to the claimant's attitude, that subjected to compulsory mediation.52 Thus, there was no reasonable prospect of any the European Commission, in its drafted mediation succeeding, and it was also clear Directive (2004), encouraged mediation that the defendants had not refused to processes or ADR. mediate. On the contrary, the defendants Following some amount of good had adopted the stance from very early on degree of comment that has been generated that they would mediate when it was appropriate to do so during the course of the

49 litigation. One of the problems in the course ibid of the progress of the case, was that it was 50 Annual conference of the Civil Mediation Council, in May 2008. 51 Brooke, Mediation, p. 299 53 [2004] EWCA Civ 576; [2004] 1 W.L.R. 3002 52 ibid 54 [2008] EWHC 12

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not until sometime after the claim was likely to be regarded as an unacceptable issued, following what were described at constraint on the right of access to court and [31] as “radical amendments” “to the claim that the court's role was to encourage rather that the defendants were in a proper position than compel ADR.59 to consider mediation. In itself it was not Lord Phillips, in determining the unreasonable for the defendants to have advantages and disadvantages of waited until the claim was properly and compulsory mediation, argues that strong finally formulated before considering views are being expressed, and those who whether to mediate.55 are in opposition argues that such Further noted, this has given rise to, compulsory mediation is the exact opposite or rather highlighted a common problem of mediation. The main purpose of ADR, as which parties faced in assessing whether or earlier noted, is that it ought to be not to mediate, and if to mediate when to do deliberate, and the question bearing in mind, so56. Again, Judge Coulson QC described how to oblige parties to participate in a this problem at para. [32]:57 process which ought to be done willingly. Although statistics has revealed that the “It is a common difficulty in cases of this settlement rates between parties that were sort, trying to work out when the best compelled to mediate and those who time might be to attempt ADR or undertake mediation voluntarily are just mediation. Mediation is often suggested about the same.60 by the claiming party at an early Furthermore, it was argued that stage....A premature mediation simply while the courts have recently extended the wastes time and can sometimes lead to a scope of the Halsey jurisdiction, it remains hardening of the positions on both sides one which, as Ward L.J. acknowledged in S which make any subsequent attempt of v Chapman61 had not done as much as it settlement doomed to fail....” was hoped to have done to facilitate the development of a culture of mediation; of In Shirayama Shokusan Company settlement. It remains to be seen whether the Limited v Danovo Limited,58 Blackburne J. 2008/2009 developments will render it a held that the court had jurisdiction to order a more efficacious facilitator and promoter. party who was unwilling to have a dispute What might however be more desirable is mediated to have the dispute mediated that, the Court of Appeal, or Civil Procedure because by CPR, Pt 1 the court was required Rules Committee, revisits Halsey in light of to actively manage cases and encourage the four years' experience. If this were to occur, parties to use ADR. The Judge decided to the court could consider not only the make such an order in this case on the efficacy of the guidelines laid down in grounds that the parties were in a long term Halsey itself, but it could equally examine relationship and mediation would be able to whether, and if so how those guidelines deal with such wider matters where could be reformulated so as to properly litigation would not. However, the Court of encourage mediation.62 Appeal in the subsequent case of Halsey Thus, at the present time, Halsey expressed the view that compulsion was case and the extensions established by the High Court in Carleton v Strutt & Parker,63 55 J. Sorabji,” Cost- Further Developments from Halsey: Nigel Witham v. Smith & Isaac, and S v. Chapman”, (2008), 27(4), Civil Justice Quarterly, 59 Cooksley, “Mediation- needed in PI?”, p.227 pp. 427-432 60 Lord Phillips. “Alternative Dispute Resolution”, p. 56 Sorabji, “Cost- Further Developments from 417 Halsey”, P. 429 61 [2008] EWCA Civ 800 57 Nigel Witham Ltd v. Smith & Isaac[2008] EWHC 62 Sorabji, “Cost- Further Developments from 12 Halsey”, p.431 58 [2004] 1 WLR 2985 63 [2008] EWHC 616 QB

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and Nigel Witham Ltd v Smith & Isaacs64, mediation is successful in having the whole is limited in application. It is limited as it case dismissed and where for example simply justifies the court departing from the quantum only is in issue. The court felt that general rule that costs should follow the this would be a proportionate step in the event where an unsuccessful party can light of the potential value of the case and demonstrate that the successful party the length and expense of the trial should unreasonable refused to engage in there be no settlement. Therefore, the most mediation. In such circumstances where that important lesson to learn is that a party can be established, a reduction in refusing mediation must have good reasons recoverable costs can be made. To increase for doing so and, ideally, should state them the Halsey jurisdiction's utility, it might at the time it refuses. Further, such a party is perhaps be time for the courts to consider less likely to be penalised if it has during the extending it to permit indemnity costs to be process of the litigation, made attempts to recoverable by a successful party where it settle it.66 can be shown that the failure to enter mediation was caused by the unsuccessful CONCLUSION party's failure to conduct the litigation in a In the comparison and contrasting way that facilitated identification of the decisions of case law and opinion of legal critical moment and entry into mediation at minds, it would seem obvious that parties to a time when it was cost-effective for the an action must be prepared to give parties to do so. Equally, the court could acceptable reasons for refusing mediation. perhaps extend the jurisdiction to enable an Thus, solicitors and barristers are however, unsuccessful party to straightforwardly rely obligated to understand the pros and cons of on the successful party's failure to properly compulsory mediation and this may result in prosecute their claim so as to facilitate cost sanction if ADR is not considered mediation or other ADR proceedings as ahead of litigation. The court should not be demonstrating, or amounting to, an seen as the only means of resolving unreasonable refusal to enter into mediation disputes, this notion was described as proceedings. Steps such as these, which illusory. The cost of litigation is would increase the prospect of the inconsiderably high which places more imposition of penalties for failing to burden on the state and not only the properly progress claims to facilitate individuals involved. Therefore, it was mediation, ADR or other forms of suggested that for mediation to strive, there settlement process, might well be a more must be increased efforts to secure public effective mechanism for encouraging the awareness of the benefits and availability of culture of settlement which Lord Woolf mediation; also adequate provision of funds, emphasised was to be of such importance facilities and trained mediators in courts and under the CPR.65 tribunals, and as well as increased Therefore, it can be seen that the persuasion of ADR. courts are becoming more prepared to In tackling the high cost of litigation, penalise in costs the party who refuses to Sir Lightman, suggest that the hurdles participate in the mediation process. created in Halsey can only be solved by the Although the most recent case of Halsey removal by the legislature, on one hand, and may be perceived as a slight brake on that the courts. These are made possible by development, there is surely a distinction to creating more familiarity with the mediation be drawn between cases in which liability is process, and also by the recognition of the the issue and the defendant refusing fact that in practice such hurdles are

64 [2008] EWHC 12 65 Sorabji, “Cost- Further Developments from Halsey”, p. 431 66 Cooksley, “Mediation- needed in PI?”, p. 227

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regularly sidestepped or overlooked without 12. Grainger, I. (2004) The Cost Consequences realising its effect on the justice system. of a Failure to Mediate, Civil Justice Finally, this paper has examines Quarterly, Vol. 23 (10), pp. 244-247. options such as; increasing public awareness 13. Hudson-Tyreman, A. (2008) Encouraged, of ADR; changes to civil procedure, costs Pushed or Forced- the Order of the Day? Construction Law Journal, Vol. 24 (2) and fees to provide greater incentives to use pp.79-86. ADR; mandating ADR prior to litigation; 14. Justice Jackson, (2005) Address by Jackson improving assessment and referrals services; J. to TECBAR, TeSCA and SCL, Vol. and using ADR techniques to improve court 21(4), Construction Law Journal, pp. 265- and tribunal hearing. 274. 15. Liebmann, M et al, (1998) Community and REFERENCES Neighbour Mediation, London, Cavendish 1. Acland, A. F. (1995) Resolving Disputes Publishing Ltd. Without Going to Court. London, Century 16. Lightman, G. (2007) Mediation: an Ltd. Approximation to Justice, Arbitration, 2. Aerbach, J. S. (1983) Justice without Law, (2007) Vol. 73 (4), pp. 400-402. Oxford. Oxford University Press. 17. Lord Justice Jackson, (2009) Report on 3. Bram Van de Klundert and Glasbergen, P. Review of Civil Litigation Costs, (1995) The Role of Mediation in the Process December, 2009. of Integrated Planning: Environmental 18. Lord Phillips, N. (2008) Alternative Dispute Planning in the Area of the World‟s Biggest Resolution: An English Viewpoint, Harbor. Arbitration, Vol. 74 (4), pp. 406-418. 4. Glasbergen P (ed), 1995, Managing 19. Mayer, B. (2004) Beyond Neutrality: Environmental Disputes, The Netherlands, Confronting the Crisis in Conflict Kluwer Academic Publishers, pp. 69-89. Resolution, United States of America, 5. Brooke, H. (2008) Mediation in personal Jossey-Bass. injury and clinical negligence cases, Journal 20. Mildred, M. (2004) Civil Procedure- Costs- of Personal Injury Law. Vol. 4, pp. 296-307. Alternative Dispute Resolution, Journal of 6. Clarke, A. (2008) The Future of Civil Personal Injury Law. Vol. 3, C118-121. Mediation, Arbitration, Vol. 74 (4), pp. 419- 21. Poole, A. (2008) Mediation Case Law: 423. Current Issues, Scot Law Times, Vol. 23, 7. Clark, B. and Dawson, C. (2007) ADR and pp. 155-159. Scottish Commercial Litigators: a Study of 22. Shipman, S. (2006) Court Approaches to Attitudes and Experience, Civil Justice ADR in the Civil Justice System, Civil Quarterly. Vol. 26 (4), pp. 228-249. Justice Quarterly. Vol. 25 (4), pp. 181-218. 8. Colman, A. (2007) Mediation and ADR: A 23. Sorabji, J. (2008) Costs- Further Judicial Perspective, Arbitration. Vol. 73 Development of Halsey: Nigel Witham Ltd (4), pp. 403-406. v. Smith & Isaac and v. Chapman, Civil 9. Conway, K. (2005) ADR- Does It Work in Justice Quarterly. Vol. 27 (4), pp. 427-432. Landlord and Tenant Disputes? Landlord 24. Supperstone, M. et al, (2006) ADR and and Tenant Review. Vol. 9 (1), pp. 7-10. Public Law, Public Law, Sum, pp. 299-319. 10. Cooksley, N. (2004) Mediation- needed in 25. Tronson, B. (2006) Mediation Orders: Do PI? Journal of Personal Injury Law. Vol. 3, the Arguments Against Them Make Sense? pp. 225-228. Civil Justice Quarterly, Vol. 25 (7), pp. 412- 11. Glasbergen, P. (1995) Environmental 418. Dispute Resolution as a Management Issue: Towards New Forms of Decision Making, How to cite this article: Okeya IO. Critical in Glasbergen P (ed). Managing examination of alternative dispute resolution. Environmental Disputes, The Netherlands, International Journal of Research and Review. Kluwer Academic Publishers, pp. 1-17. 2020; 7(11): 95-105.

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