At the time of writing (and I will update this post if things change) mediation is not compulsory in civil and commercial disputes in England & Wales. However mediation and other forms of ADR are strongly encouraged in the following ways:
- Solicitors have a professional duty to advise their clients about mediation and other alternatives to litigation.
- The Pre-Action Protocols require parties to litigation to consider using mediation as a way of resolving their disputes.
- The Civil Procedure Rules make it clear that the courts consider that litigation should be used as a last resort.
- Courts have a duty to manage litigated cases and the duty includes encouraging the parties to use mediation to resolve disputes.
- Under CPR 44.5 courts have the power to penalise in costs parties who failed to consider using mediation.
- Senior judges have made speeches commending the use of mediation – see Lord Clarke’s comments here and my post should courts order mediation?.
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