Refusing To Engage In Alternative Dispute Resolution Becomes Harder To Justify

The English courts are getting tougher on parties that refuse to participate in alternative dispute resolution (ADR), the most common form of which is mediation.

Since 2004, an unreasonable refusal to participate in ADR has been identified as conduct which the court may properly punish by imposing costs sanctions (Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576). In that case, the Court of Appeal laid down a non-exclusive list of factors for deciding whether a refusal to participate in ADR was unreasonable. These are:

• The nature of the dispute – while ADR may not be appropriate in all cases (for example, where there are allegations of fraud or where it is considered that a binding precedent would be useful) few cases are unsuitable for ADR by their very nature