Civil Engineering Reference
In-Depth Information
Mr Justice Lightman in
Hurst
v.
Leeming
(2003) endorsed this fully stating:
Mediation is not in law compulsory
But alternative dispute resolution is at the
heart of today's civil justice system, and any unjustified failure to give proper atten-
tion to the opportunities afforded by mediation, and in particular in any case where
mediation affords a realistic prospect of resolution of a dispute, there must be antic-
ipated as a real possibility that adverse consequences may be attracted.
…
Hurst
was a professional negligence action. The action was found to have no merit
and was dismissed by the court. he normal situation in such circumstances would be
that the defendant Leeming would be entitled to his costs. The plaintiff Hurst argued
that Leeming should not be entitled to costs because both before and after the action
commenced, Hurst had proposed mediation but Leeming had refused. he court held
thatthefactthatsubstantialcostshadalreadybeenincurredwouldnotbegoodreason
to refuse to mediate - this was simply a factor to take into account in the mediation
process. Neither was it a good reason to refuse to mediate that the action was one
of professional negligence or that one party believes it has a watertight case. Where
details had been provided refuting the other party's case, this would be a relevant
consideration but would not, in itself, be sufficient to justify refusing to mediate.
The judge considered the critical factor to be whether, viewed objectively, a medi-
ation has any real prospect of success. If it does not, a party may refuse to mediate.
However,thewordofwarningwasthatifthatgroundwasreliedonandthecourt
disagreed, the cost penalty could follow. The court stated that:
The mediation process itself can and often does bring about a more sensible and
moreconciliatoryattitudeonthepartofthepartiesthanmightotherwisebe
expected to prevail before the mediation, and may produce a recognition of the
strengths and weaknesses by each party of his own case and of that of his opponent,
and a willingness to accept the give and take essential to a successful mediation.
What appears to be incapable of mediation before the mediation process begins
often proves capable of satisfactory resolution later.
On the particular facts of this case, it was found that the refusal to mediate was justi-
iable.However,thatwassaidtobeexceptional.
In
Halsey
, the court gave further guidance as to how the question of whether a
defendant had acted unreasonably in refusing ADR should be answered. he starting
point was to say that regard should be had to all the circumstances of the particular
case. Among the relevant matters to take into account are:
•
the nature of the dispute;
•
the merits of the case;
•
the extent to which other settlement methods have been attempted;
•
whether the costs of the ADR would be disproportionately high;
•
whether any delay in setting up and attending the mediation would have been prej-
udicial; and
•
whether the ADR had a reasonable prospect of success.
