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Commercial mediation in action: tactics following Court of Appeal mandatory ADR order

Whiteboard with text written on including the words mediation, dispute and negotiation

On 6th August 2019 the Court of Appeal handed down a judgment determining that an Early Neutral Evaluation (“ENE”) could be ordered by the Court for commercial mediation without the consent of the parties. Leading mediator Terry Renouf considers the implications of this decision.

In Lomax v Lomax [1] Moylan LJ handed down a brief judgment which although confined to ENE will be of wider importance when considering the various forms of ADR that are now encouraged by the Judiciary. He noted that “the Court’s engagement has progressed significantly since [the leading case on mediation] Halsey v Milton Keynes [2] was decided.” It is pertinent to note too that Moylan LJ approved the comments of Norris J in Bradley & Bradley v Heslin & Heslin [3]:

“… is no longer enough to leave the parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken. In boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves.”

It is acknowledged that Lomax does not determine whether a party could be compelled to mediate (Norris J in the lower Court acknowledged that the “truly unwilling party” could not be obliged to mediate) but it is clear from judicial speeches, from the Civil Justice Council report in November last year [4] as well as case law that the senior Courts will be revisiting ADR and mediation guidelines.

A few observations at this point –

  • How should litigators respond where Judicial ENE cannot be ignored but can be imposed?
  • Will parties be reluctant to object when it will be imposed anyway?
  • Is the objection a sign of weakness?
  • What are the issues that will now have to be advanced to resist Judicial ENE?
  • Is mediation in effect mandatory in certain classes of cases such as boundary and neighbour disputes or inheritance cases?

Judicial ENE can only take place once proceeding are issued and so why not “invest” the issue fee in a pre-litigation ENE – or in an expert determination of key issues? But –

  • Is ENE the best path to settlement?
  • Does the flexibility offered by mediation offer outcomes and opportunities that clients prefer?

Every case will turn on its fact and settlement on what is important for that particular client. Paths to settlement will vary but it is clear that lawyers must have not just a litigation strategy but, as the Courts play a more active role in focusing on the resolution of cases, that parties will also need an ADR strategy from the outset.


[1] [2019] EWCA Civ 1467[2] [2004] 1WLR 3002
[2] [2004] 1WLR 3002
[3] [2014] EWHC 3267 (Ch)
[4] ADR and Civil Justice, Final Report of the Civil Justice ADR Working Group, December 2018

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