There have been some exciting developments in the mediation world, to include the implementation of the ADR Directive, which will involve all businesses offering ADR to consumers and the Civil Justice Council has launched its report on online dispute resolution. The government has also announced its intention to close a lot of Court buildings and to increase the use of IT in the Courts.
There have been more court decisions which reinforce the need to mediate and examples of unfortunate litigants who worse off because of the costs of litigation. These include cases involving family disputes, neighbour disputes, the Court of Protection and libel.
It used to be the case that an unsuccessful party would be ordered to pay the successful party’s costs, unless they had not beaten an offer made by the other party. Now, the position is uncertain as conduct before and during the litigation and attempts to settle are taken into account, and in particular whether the parties have agreed to mediate.
In the Court system there has been an increase in litigants in person, legal aid cutbacks and increasing Court fees.
With Mitchell watered down by Denton, compliance with Court directions is still imperative for litigators to avoid sanctions and ADR remains a potential life saver. It is ironic that Mitchell has lost his libel action and onlookers are left wondering whether it was worth risking £3m costs arguing about 20 syllables (including the “politically toxic” word “pleb”) that took 4.5 seconds to utter, or whether, with the stakes so high, the parties should have tried to resolve their differences through ADR. It has been reported that Mitchell turned down a part 36 offer to settle the case, which he must now be regretting. Whether the parties tried to mediate is unknown.