Discussion required?

In Shirayama Shokusan Co Ltd v Danovo Ltd [2004] 1 WLR 2985 Mr Justice Blackburne held that the court had jurisdiction to order mediation; even where one party was unwilling. The Court of Appeal in Halsey v Milton Keynes General Trust NHS [2004] EWCA Civ 576, [2004] 4 All ER 920, however, held that to do so would be in breach of Art 6 of the European Convention on Human Rights (the right to a fair trial). It was held that courts should “explore the reasons for any resistance to ADR [alternative dispute resolution] procedures but where a party remains intransigently opposed to ADR…it would be wrong for the court to compel them to embrace it”.

But the attitude of the courts to mediation is evolving rapidly. From April 2008 the new-style allocation questionnaire has a larger section A dealing with settlement and mediation: “Parties should make every effort to settle their case before the hearing…by discussion…negotiation…or by a more formal process such as mediation. The court