ADR Invitations Not Always Appropriate

Under the Rules of the Superior Courts, the High Court can invite parties to litigation to engage in a process of alternative dispute resolution (ADR) – defined in the rules to encompass conciliation and mediation. The Court of Appeal¹ has confirmed that although ADR is worthwhile in many cases, it is inappropriate for a direction to be made inviting the parties to mediate in all cases.

Facts

The underlying dispute between the parties related to the effects of sewage discharge on the plaintiffs' oyster fishery. Ultimately, the plaintiffs had to cease operations due factors allegedly relating to the sewage discharge and brought proceedings for losses incurred. During early Summer 2014, the plaintiffs invited the defendants to participate in a process of mediation, which the defendants declined. Consequently, the plaintiffs applied for an order from the High Court inviting the parties to mediate. In the affidavit grounding the motion, the plaintiffs' solicitor