Alternative dispute resolution
7.234A failure to agree to participate in alternative dispute resolution can affect a successful party’s award of costs. The principles were set out by the Court of Appeal in
Halsey v Milton Keynes General NHS Trust.
1[2004] 1 WLR 3002 at [9]. An attempt to make alternative dispute resolution compulsory would impede a party’s access to a court:
It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court. The court in Strasbourg has said in relation to article 6 of the European Convention on Human Rights that the right of access to a court may be waived, for example by means of an arbitration agreement, but such waiver should be subjected to ‘particularly careful review’ to ensure that the claimant is not subject to ‘constraint’: see Deweer v Belgium (1980) 2 EHHR 439, para 49. If that is the approach of the ECtHR to an agreement to arbitrate, it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6. Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it.
A refusal to agree to participate is only relevant to an award of costs if the party acted unreasonably in refusing to participate. The unsuccessful party has to show this.
2[2004] 1 WLR 3002 at [13]. Encouragement by the court is relevant – the stronger the encouragement, the more likely it is to be unreasonable to refuse.
3[2004] 1 WLR 3002 at [29]. Public bodies are in no different position from private ones.
4[2004] 1 WLR 3002 at [34]–[35].