The frustrations of the judiciary occasioned by parties not utilising alternative dispute procedures in particular cases come ringing out in judgments from time to time. A notable example recently came in a judgment of Daniel Alexander QC (sitting as a Deputy Judge of the High Court) in Ociusnet &Anor –v- Altus Digital Media Limited & ORs [2021] EWHC 3377 (Ch). In that case the judge gave a clear direction to the parties to explore resolving the dispute other than by continued litigation.

In its report in July last year, the Civil Justice Counsel confirmed its view that compulsory ADR is both legal and desirable. It was welcomed at the time by the Master of the Rolls who has said ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process.  Whilst there is no compulsory mediation for commercial cases (yet), the encouragement to mediate and use other forms of negotiation continues.

The 11th edition of the Commercial Court Guide, just published, makes a notable change in its approach to ADR. The guide explains it is no longer to be called ADR, but instead NDR (for negotiated dispute resolution). In a development from the previous edition, the new Guide provides that parties who consider that NDR might be appropriate may apply for directions “at any stage”, whereas the focus in the previous guide was on consideration of NDR at CMC stage. The new guide indicates that the Court will be interested in NDR throughout the litigation process.  

In another recent development at the other end of the scale, the Civil Justice Council produced its final report on the resolution of small claims in January. This recommends compulsory attendance at mediation for small value claims of £500 or less. Parties refusing to do so would face a sanction of stay and strike out of the claim for a Claimant and a costs sanction for a Defendant under the recommendations.

The encouragement of mediation continues across the board and may, at the lower end of the scale, be turning to compulsion.