Originally from World Arbitration and Mediation Review

Worldwide Perspectives on Mediation
by
David Spencer∗ and Nadja Alexander+
This month’s column looks at an interesting decision handed down
by the England and Wales Court of Appeal dealing with an application by
a losing party in litigation for the court to deny costs to the winning party
because that party refused to mediate prior to the commencement of the
trial. Unlike the United States and Australia, the power of English courts
to order parties to mediation is not established in statutory law. Rather,
the English courts derive their authority from subordinate legislation,
namely, the Civil Procedure Rules (the Rules). The Rules apply in most
civil proceedings; their overriding objective is to enable the courts to deal
with cases justly.
Rule 1.1(2) provides that dealing justly with cases means, among
other things,
dealing with cases in ways that are proportionate to the amount of money
involved, the financial position of each party, and ensuring a fair
allocation of the court’s resources. Under Rule 1.2, the court must give
effect to the overriding objective whenever the court exercises its powers.
Further, Rule 1.3 requires that parties assist the court in furthering the
overriding objective. Rule 1.4 states that:
(1) The court must further the
overriding objective by actively managing
cases.
(2) Active case management
includes...
(e) encouraging the parties to
use an alternative dispute
resolution procedure if the court
considers that appropriate and
facilitating the use of such
procedure.
“Alternative dispute resolution” is collectively described in the Rules as
methods of resolving disputes other than through the normal trial process.