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27 November 2019
Issue: 7866 / Categories: Features , Profession , ADR
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Resolving intractable disputes: best practice

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Enforcing contractual clauses to mediate, not litigate. Rob Langley, a mediator at North East Mediation Solutions, reports on how new rules are developing
  • The court has a discretion to stay proceedings commenced in breach of an enforceable dispute resolution agreement.

Although not all business-people—or their lawyers—are convinced of the benefits of avoiding the courts, most are; and many commercial agreements now include clauses requiring structured negotiation and then mediation as a precursor to involving the courts.

In Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC), [2019] All ER (D) 86 (Aug)the court considered a typical structured dispute resolution clause. Ohpen was software designer which had a claim for £4.7m against its customer, Invesco, which in turn alleged claims against Ohpen for £5.7m. After failed negotiations, Ohpen lost patience with the resolution procedure, and commenced proceedings. Invesco sought an order to stay proceedings and enforce the mediation clause.

The parties had agreed that any awkward dispute should be: (i) referred to the respective contract managers to

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