Mandatory Mediation?

The High Court has told parties to find other ways to resolve their disputes and said that a non-litigated approach should be treated as the primary and not alternative means.  In this article we consider how mandatory ADR actually is and how mandatory it is set to become in 2022.


During 2021, the Master of the Rolls, Sir Geoffrey Vos, set out his vision for the future of disputes being, for the majority of civil cases, a streamlined online court process.  A key part of his vision, is for ADR to no longer be an alternative to litigation but rather a process that is fully integrated into the litigation with Judges there to not simply referee the fight but to assist in breaking it up. 

At the end of last year it became evident that Judges were following this suggested direction.  We consider a couple of cases below. 

Finding a Resolution

In Ociusnet UK Ltd & Anor v Altus Digital Media Ltd & Anor [2021] EWHC 3377 (Ch) the Claimants brought a claim for passing off and an application for an interim injunction.  In June 2021 the Defendants agreed to the terms of the injunction with the exception of costs which were subsequently assessed at £60,000.  The Claimants later sought judgment on the claim which they planned to amend in order to incorporate further relief.

Mr David Alexander QC, sitting as a deputy High Court judge, noted that the case, despite having hardly reached first base, had involved three hearings requiring multiple days of preparation, significant court time and a hearing bundle running to over 700 pages.  Notwithstanding this, no hearing so far had any focus on the merits but rather had focused on costs and procedure.  He continued, “… it is clear that devoting significant financial, intellectual and emotional resources to this litigation … is unlikely to be the most efficient and cost-effective way of resolving the key underlying issues”.  He went on to note that the court would support a more effective means of reaching a resolution and directed that the parties co-operate in “… creating proportionate, constructive routes to resolution…”

In another case in proceedings brought in the High Court, Master Davidson ordered, by consent, a stay of proceedings to enable the parties to attempt to find a resolution via mediation.  The order provided that the parties were to meaningfully engage on a without prejudice save as to costs basis in a genuine attempt to settle the proceedings.  The order went on, “The mediation shall be conducted on a without prejudice save as to costs basis and either party shall be at liberty to make an application relying on evidence as to the conduct of the parties at the mediation either with regards to cost consequences of that conduct or with regards to the court deciding whether or not either party has failed to engage with the mediation process.”

Moving Forward

Sir Vos’ suggestion of mandatory ADR is being considered by the Civil Justice Council to consider when compulsory ADR might be appropriate and how it should be implemented.

So long as parties remain able to choose to continue their litigation if necessary it seems that compulsory ADR will be seen more in the disputes landscape.  It seems to us that to be used successfully, any order for ADR must allow the parties to divulge what happened at the mediation to prevent a disgruntled and reluctant party from choosing to not fully engage in the process.

We expect to see mandatory ADR by the end of 2022 and as such any party choosing to refuse to engage in ADR prior to any such order being made should think very carefully about their reasons for doing so.  It is very clear that the disputes landscape is changing in this regard and the Court is likely to be highly critical of parties who fail to engage.

Posted on 02/01/2022 by Ortolan

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