By Anita Rice


Judges should help boost 'startlingly' low take-up rates of alternative dispute resolution (ADR) by routinely directing litigants to mediate before taking disputes to trial, the Master of the Rolls has said.



Speaking at the Civil Mediation Council conference in Birmingham last week, Sir Anthony Clarke said the number of litigants making use of mediation was so poor that 'something has to be done'.



He told delegates: 'ADR in general, and mediation in particular, where it is appropriate, must become an integral part of our litigation culture... what we need to do is to render mediation part of the normal pre-trial case-management process.'



Clarke said there was nothing in the Civil Procedure Rules (CPR) to prevent judges from directing parties to mediation: 'The court has sufficient powers at present to routinely direct parties during the course of the pre-trial stage of any proceedings.



'I would like to see such a direction as routine.'



He also criticised the landmark Halsey v Milton Keynes General NHS Trust appeal court ruling that suggested compulsory mediation would contradict parties' right to access to a court and a fair trial under Article 6 of the European Convention on Human Rights.



'There are a number of European states which provide for compulsory or court-directed mediation without any suggestion they are contradictory to the convention.'



Clarke is the latest senior member of the judiciary to endorse mediation and to criticise the Halsey ruling after the Lord Chief Justice, Lord Phillips of Worth Matravers, recently said parties who refuse to mediate should explain themselves or face cost penalties.



Michel Kallipetis QC, chairman of the bar ADR Group, agreed that there was nothing 'and indeed everything' in the CPR to encourage the courts to direct parties to mediation.



However, Kallipetis stopped short of backing compulsory mediation for fear it would 'reduce mediation to a "tick box" as part of the litigation process, which happens in some states in the US'.