Cases Not Likely To Be Suitable For Mediation

Even some ardent practitioners of Alternative Dispute Resolution will agree that there are some disputes that are unsuitable for ADR. Some of the cases which might be seen as “unsuitable for mediation” were mentioned in the case of HALSEY V MILTON KEYENS GENERAL NHS TRUST [2004] 4 ALL E.R 920.

In this case the Court Of Appeal held that dealing with “general point of law” which a party may require to have considered from time to time may not be suitable for mediation. This is because it is difficult with mediation in cases where there is a point of law to be decided, a mediator therefore cannot provide such a decision. Even in cases where lawyers serve as mediators, the lawyer starts the session by explaining to the parties that he or she is not there as a lawyer but as a mediator to try and help the parties reach an agreement.

Also, in cases where the contract in place between the claimant and the defendant was in the same term as contracts which either the claimant or defendant had with other parties. In such cases there would be a clearer need for a judicial contractual construction.

The Commercial Court Working Party on ADR states that;

There may also be issues which involve allegations of fraud or other commercially disreputable conduct against an individual or group which most probably could not be successfully mediated.”

Where one of the parties to the contract has been guilty of fraud or of other “commercially disreputable conduct”, the essential trust and confidence between the parties may have broken down. Such cases might then lead the “innocent party” to the view that mediation would not be possible. It would be difficult for a fraudster to convince a court that an innocent party has acted unreasonably in refusing to enter into mediation with him or her.

In cases where injunction or other relief is sought because it is essential to protect the position of a party, it would normally be inappropriate for the courts to order mediation.

The merits of a case can also make the case unsuitable for mediation. Where a party believes that he or she has a very strong case, the party might think that by submitting to mediation he or she will be expected to move from an absolute position to that of compromise.

It should be noted that in many cases no single factor will be decisive on whether a case is suitable or unsuitable for mediation.

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