Basis of English law of mediation
The basis for the English law of mediation can be summarised as follows:
The English law may be found in three sources.(1)The first is the statutory Civil Procedure Rules 1998 ("the CPR") and the Rules of Practice made thereunder.
Rule 1 (1) of the CPR provides that the overriding objective of the CPR is to enable the court to deal with cases justly.
CPR 1 (2) requires the court to give effect to the overriding objective when exercising any power given to it by the CPR or interpreting any rule
CPR Rule 1 (3) requires the parties to help the court to further the overriding objective.
CPR 1 (4) requires the court to further the overriding objective by active case management and this includes encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure.
CPR 44.3 provides that in exercising its discretion whether to order a party to pay the costs of an opposing party at the end of a trial,the court can take into account the conduct of the parties and that includes any unreasonable refusal of a party to proceed to mediation.
The leading authority on the exercise by the court of its power to order mediation and to impose sanctions against a party who unreasonably refuses to proceed to mediation is the decision of the Court of Appeal in Halsey v Milton Keynes General NHS Trust 2004 1 W.L.R.3002 but it is a decision that is clearly wrong in a number of respects and is generally accepted to be so.
An authoritative statement of the law is awaited"
