law pages of Bournemouth and Poole College.
[ADR – courts will ‘encourage’ appropriate use of mediation by adverse costs orders]
1. Halsey was a medical negligence case. D, the hospital where C’s husband died, allegedly because of an incorrectly fitted nasal feeding tube. D refused invitations by C to mediate, and C lost at trial.
2. Steel, was a car accident case where D refused an offer of mediation.
Held: The courts will not refuse costs to a successful party unless it was shown that the successful party acted unreasonably in refusing to agree to ADR. The normal order of costs made to the winning party (costs follow the event – crudely stated “the winner takes all”) would not apply if the successful party acted unreasonably.
To oblige truly unwilling parties to refer their disputes to mediation (the most common form of ADR) would be to impose an unacceptable obstruction on their right to access the court, and could fall foul of Article 6 of the European Convention on Human Rights, which gives citizens the right to a fair trial.
Compulsory ADR orders will not be made as to do so would make a voluntary process involuntary.
Factors the courts will take into account:
–The nature of the dispute;
–The merits of the case;
–The extent to which other settlement methods had been attempted;
–Whether the costs of the alternative dispute resolution would have been disproportionately high;
–Whether any delay in setting up and attending the alternative dispute resolution would have been prejudicial;
–Whether the alternative dispute resolution had a reasonable prospect of success.
Hurst v Leeming  approved.