Refusing to mediate can be a dangerous and expensive option, says Duncan Henderson
New versions of the allocation questionnaire used in civil proceedings in England and Wales (forms N150 and N151) were published on 1 April 2008. Section A dealing with settlement has been expanded in each case. The amendments were not mentioned in the 46th update to the Civil Procedure Rules (CPR). The new s A is clearly designed to stimulate change in the behaviour of litigants and their advisers towards alternative dispute resolution (ADR), and in particular mediation.
Any practitioner advising a client against trying to settle a claim at the pre-allocation stage (before the hearing) now has to give and put on record justifiable reasons for the answer, and any client who wants to say “no” for reasons which are not justifiable (or to leave the box blank because there is no good reason for refusal) will have to be warned of the costs penalties which an unreasonable refusal to go to ADR may attract.
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