Pressure mounts on parties to engage in ADR

PGF II SA v. OMFS Company 1 Ltd [2013] EWCA Civ 1288
Mann v. Mann [2014] EWHC 537 (Fam)

No party to litigation can be forced into ADR against their will. No court order can compel an unwilling litigant to indulge in such a process. No court can prevent a person having access to justice merely because of their refusal to participate in this type of voluntary procedure. Such is the current state of the law with but one exception – FDR (essentially a judge-led mediation) can be ordered in family cases with uncertain consequences if a party contemptuously refuses to attend.

At present, FDR apart, the most that a court can do is to encourage ADR by ordering a stay or adjournment for a limited period and, if that fails, imposing a costs sanction on a recalcitrant party. However, the pressure is mounting on parties to engage in ADR as may be seen in two recent cases, PGF II SA v. OMFS Company 1 Ltd [2013] EWCA Civ 1288 and Mann v. Mann [2014] EWHC 537 (Fam). Essentially, in order to avoid being heavily penalised in costs whatever the outcome, a party will need to give very good reasons at the time why ADR is refused.

Michael King is a very experienced mediator with a particular reputation in the mediation of trust disputes.