Civil Engineering Reference
In-Depth Information
litigants are fully informed about the dispute resolution options available to them and
should encourage parties, in appropriate cases, to consider ADR.
However, it stopped short of compelling parties to enter into an ADR process, the
view being taken that people should have a fundamental right to have their disputes
dealt with in the courts. Mediation and other forms of ADR should therefore supple-
ment rather than be an alternative to the court system.
The courts are, however, becoming increasingly aware of the benefits of media-
tion. In the case of
Candleberry Ltd
.v.
West End Home Owners Association and Others
(2006), Lord Nimmo Smith observed:
[W]e hope that we have said enough to reinforce our observations in court, that
this is a dispute which ought to be resolved. It cannot be in the interests of the
neighbourhood that it be prolonged, and we would encourage a resolution by com-
promise, perhaps with the assistance of a mediator.
This is a clear indication of the promotion of mediation by the Scottish courts, which
will continue to develop. here have been a number of endorsements of mediation in
the English courts which have taken a much more hands-on role. In
Dunnett
v.
Rail-
track plc
(2002), Lord Justice Brooke said: 'Skilled mediators are now able to achieve
results satisfactory to both parties in many cases which are quite beyond the power of
lawyers and courts to achieve.'
In
Cowl and Others
v.
Plymouth City Council
(2002), Lord Woolf CJ said:
Insufficient attention is paid to the paramount importance of avoiding litigation
whenever this is possible
both sides must by now be acutely conscious of the
contribution alternative dispute resolution can make to resolving disputes in a
manner which both meets the needs of the parties and the public and saves time,
expense and stress.
…
In
Reed Executive plc
v.
Reed Business Information Ltd
(2004), Lord Justice Jacob said:
'a good and tough mediator can bring about a sense of commercial reality to both
sides which their own lawyers, however good, may not be able to achieve.'
In
Halsey
v.
he Milton Keynes General NHS Trust
(2004), Lord Justice Dyson said:
'Butitisalsorighttopointoutthatmediationotensucceedswherepreviousattempts
to settle have failed.'
In
Multiplex Constructions (UK) Limited
v
. Cleveland Bridge UK Limited
(2006), the
Judgemadecommentsinrelationtomediation:
Withtheassistanceofthecourt'sdecisiononthetenpreliminaryissues,itmay
now be possible for both parties to arrive at an overall settlement of their disputes,
either through negotiation or with the help of a Mediator, who is unconnected with
the court. I commend this course to the parties, if only as a means of saving costs
and management time. If, however, the parties would prefer the court to resolve
all remaining issues, then so be it. This court encourages sensible commercial set-
tlements, but nevertheless stands ready to determine every issue which the parties
wish to litigate.
