CIVIL LITIGATION: plans to find out whether parties would consider settling out of court


A top-level mediation working group is consulting on plans to require all civil litigation parties to state at the outset of a claim whether they would consider settling out of court, the Gazette has learned.



The working party - formed after a mediation 'summit' held in Surrey last November - comprises senior members of the judiciary, government bodies and the legal profession, who recommend amending claimant and defendant forms to allow courts to identify cases that could be settled without going to trial.



The proposals come just days after the same working group successfully lobbied to revise the court allocation questionnaire, so that lawyers must confirm they have explained alternative dispute resolution (ADR) methods - including mediation - to clients.



The new document asks all parties if they would like to settle before the hearing and offers a one-month stay if they say yes. It also asks all parties to state their reasons for refusing mediation and warns that the court will consider those reasons and impose cost sanctions if deemed appropriate.



The document is already being used by some civil courts and will be rolled out across the rest by the end of April.



Sir Henry Brooke, chairman of the Civil Mediation Council and member of the working group, told the Gazette: 'It is no longer sufficient simply to say you have not considered mediation because it isn't suitable for the case.



'This issue is not going to go away. Those devising policy in this area are increasingly seeing the merits of ADR long before trial. It isn't a 24-hour wonder that we will all forget about.'



Brooke, a former appeal court judge and accredited mediator, added that the importance of mediation had been recognised at the highest levels with both the Master of the Rolls, Sir Anthony Clarke, and the Lord Chief Justice, Lord Phillips of Worth Matravers, making recent speeches in support of mediation.



Speaking in India recently, Lord Phillips said parties which refuse mediation should have to explain themselves or face costs penalties. He criticised the 2004 landmark Court of Appeal ruling in Halsey v Milton Keynes General NHS Trust for 'significantly weakening' the costs sanction, by placing the burden on the party seeking costs to show that the other party had unreasonably refused to mediate.



Anita Rice and Neil Rose