Referrals to mediation by government bodies shot up thirty-fold since the Lord Chancellor issued his pledge on 23 March 2001 committing them to settling disputes by ADR techniques whenever the other side agreed. The NHSLA has paralleled this with its own mediation initiative which has seen the number of mediations offered treble.

The courts, too, have lent their support to the use of ADR by condemning in costs those it sees as failing to take the opportunity to resolve their cases by other means. At the very heart of the Civil Procedure Rules is Rule 1.4(e) which includes, as part of the duty of active case management to be applied by the courts in furthering the overriding objective of dealing with cases justly, "encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure".

What is and is not appropriate was considered by Mr Justice Lightman in the case of Hurst v Leeming. He very helpfully ran through a checklist of some of the usual objections to mediation such as:

  • The costs already invested by the parties in the court proceedings.
  • The seriousness of the allegations made.
  • The apparent lack of substance in one party’s case.
  • The apparent lack of any real prospect of a successful outcome through mediation.
  • The obsessive character of one of the parties.

Referring back to supportive remarks of the Court of Appeal in cases such as Dunnett v Railtrack (where the successful appellant was deprived of its costs for not accepting an offer of mediation) and Cowl v Plymouth City Council (where Lord Woolf identified cases involving public bodies as being particularly suitable for ADR), the Judge dismissed all the objections save the last.

An even more unpleasant surprise recently came the way of the Ministry of Defence after it had successfully argued at trial many of the issues in a case concerning a commercial lease. Presented with the Lord Chancellor’s pledge and an expressed willingness by the other party to seek mediation, the Judge described it as "something to which I ought to attach great weight" and decided to deny the Ministry its costs.

Hempsons’ experience of ADR is developing commensurately. In our commercial team there is a long history of arbitration and the use of single expert evaluation. In healthcare disputes, there is more emphasis on independent mediation, particularly under the auspices of the NHSLA initiative. But what of those "character and attitude" cases that seem to fall outside the realms of suitability as defined by Mr Justice Lightman? Our experience suggests that, on the contrary, they may be particularly suitable, especially those cases that fall outside the scope of the ELS or the CNST and have to be dealt with by individual NHS bodies using their own time and resources. In two recent examples, dissatisfied patients were debarred from litigating by lack of legal merit in their cases but were sufficiently motivated and media-savvy to be a thorn in the flesh of the bodies responding to their complaints. In both cases, meetings chaired by independent mediators appear to have achieved closure either on the day itself or by the patients’ subsequent conduct. A day’s concentrated attention on addressing the complaints averted the attritional effects of months or years of letters, phone calls and articles in the local press. In neither case was there any need to make a payment of compensation, just it seems a desire to be heard face-to-face by an independent third party. There is clearly much to be learnt from this.

© Hempsons 2003

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.