Judges encouraging parties to
attempt to mediate their differences is certainly not a new
phenomenon. However, the degree to which parties can be coerced
into mediation is subject to the constant evolution of judicial
guidance. This article seeks to illustrate the current state of
play by bringing to light some recent developments.
The Halsey
guidelines and PGF II
Last November, we reported on the
case of PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288, in
which it was held that silence in the face of an invitation to
participate in Alternative Dispute Resolution ("ADR") is,
as a general rule, itself unreasonable and therefore liable to
provoke judicial sanction on costs.
The case effectively extended the
guidelines from the Court of Appeal in Halsey v Milton Keynes
General NHS Trust [2004] EWCA Civ 576, which set out the
following factors that will generally be instructive as to whether
or not a party was unreasonable in refusing to mediate:
