Mr Justice Blackburn decided that the court did have jurisdiction to direct alternative dispute resolution or mediation even in a situation where one party was not willing to submit. This was on the basis that the overriding objective in Rule 1 of the Civil Procedure Rules stated that cases should be resolved in ways that are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party. Further, the court rules also actively encourage the parties to use ADR and the court should facilitate such procedures. He concluded that even though one party was opposing the order he should make the Order because:
He therefore ordered the parties to attempt mediation.
*Full case details
Shirayama Shokusan Company Limited & Others vs Danovo Ltd, 5 December 2003, Chancery Division, Mr Justice Blackburn
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In one respect, it is very encouraging to see the courts ordering a resilient party to mediate. It is often said that if the parties will attempt mediation then they are usually surprised by the process, and a large proportion of mediations settle on the day. On the other hand, one might also argue that the reason for the high settlement rate is that both parties want to be present at the mediation, enter the process willingly and are open to settlement on the day. This is not to mean that it is an easy option and there is often great pressure on the day to seriously consider the strengths and weaknesses of ones case. However, it remains to be seen that forcing resilient parties to mediate is a step too far, or whether on balance the settlement success rate is such that all litigants should be mediating their disputes.