Why Mediate

Recommended by Judges

The overriding objective of the Civil Procedure Rules clearly supports the use of alternative dispute resolution (ADR).


1.   Lord Justice Mummery (2008) Appeal Court Judgement

Giving judgment in the Court of Appeal Lord Justice Mummery’s recent judgment in Bradford -v- James [2008] EWCA Civ 837 could not have been more explicit in encouraging the use of land surveyors to aid the mediation process within neighbour disputes.

His guidance for using mediation in matters such as neighbour disputes, supported by Lord Justice Jacob and Lord Justice Wilson, included the following:

 “There are too many calamitous neighbour disputes in the courts”.

"Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution"

“An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive”.
“Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both”.

 

2.   Sir Anthony Clarke, Master of the Rolls - lecture on 'The future of Mediation - May 2008'

 “ADR in general, and Mediation in particular, must become part of our litigation culture”
“there are few disadvantages”

 

3.   Conclusion of speech made by Mr Justice Lightman

My message today: is give mediation a chance.  Give it a chance at the earliest opportunity before heavy legal costs are incurred, for the incidence of those costs can prove the greatest obstacle to its success.
In litigation there is only one winner: and that is generally the lawyers and as well as the very real legal costs of the litigation there is the blight it occasions on the lives of the litigants over the protracted period until it reaches its final outcome.
The loss of a good night's sleep is a real price to pay for litigation a price which practitioners and indeed the parties all too often forget or underplay when the decision to litigate is made.
In the case of mediation everyone can be the winner, the costs can be small; a result may be achieved in a short passage of time; and personal relations may be salvaged.
Mediation is not a universal panacea: it has its limitations and it is not always applicable.  But where it is available in my view no sane or conscientious litigators or party will lightly reject it if he fairly weighs up the alternative namely litigation and any adviser who does so invites a claim in negligence against him.

© The Honourable Mr Justice Lightman 2003

Civil Procedure Rules

The Civil Procedure Rules provide that, where appropriate, Courts should actively encourage alternative dispute resolution through ‘active case management’.

Court of Appeal Judgement (2008)

Lord Justice Mummery, supported by Lord Justice Jacob and Lord Justice Wilson state in their 2008  "Neighbour Dispute" judgement:

"The risks can be minimised at much less cost than litigation by the use of surveyors' larger scale, detailed plans showing what is sold and what is retained and recording vital measurements and physical features." and further added "that more use should be made of local mediators"

Case Law

Case law has built on the Court of Appeal judgements. Not least Halsey -v- Milton Keynes General NHS Trust [2004] EWCA Civ 576 and later substantiated with  Burchell -v- Bullard and Others [2005] EWCA Civ 358 where Lord Justice Ward warned that

“the profession can no longer with impunity shrug aside reasonable requests to mediate”.

Dispute Mediation

Mediation is a practical yet sophisticated process designed to address the real issues and obstacles behind conflict in reaching a commercially viable solution.

Why mediate?   >

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