ADR Invitations Not Always Appropriate

Under the Rules of the Superior Courts, the High Court can invite parties to litigation to engage in a process of alternative dispute resolution (ADR) - defined in the rules to encompass conciliation and mediation. The Court of Appeal1 has confirmed that although ADR is worthwhile in many cases, it is inappropriate for a direction to be made inviting the parties to mediate in all cases.


The underlying dispute between the parties related to the effects of sewage discharge on the plaintiffs' oyster fishery. Ultimately, the plaintiffs had to cease operations due factors allegedly relating to the sewage discharge and brought proceedings for losses incurred. During early Summer 2014, the plaintiffs invited the defendants to participate in a process of mediation, which the defendants declined. Consequently, the plaintiffs applied for an order from the High Court inviting the parties to mediate. In the affidavit grounding the motion, the plaintiffs' solicitor posited that the proceedings "could substantially benefit from mediation, if only to narrow the issues for trial". Judge Gilligan refused to exercise his discretion to invite the parties to mediate on the basis that the purpose of the plaintiffs' application was artificial. He felt that the plaintiffs knew that an invitation to mediate would be rejected even if an order were made and that the plaintiffs' real purpose was to seek to "copper fasten" their position with regard to a future application for costs. The plaintiffs appealed.

Relevant rules

Order 56A, Rule 2(1) provides:

"The Court, on the application of any of the parties or of its own motion, may, when it considers it appropriate and having regard to all the circumstances of the case, order that proceedings or any issue therein be adjourned for such time as the Court considers just and convenient and:

(i) invite the parties to use an ADR process to settle or determine the proceedings or issue, or

(ii) where the parties consent, refer the proceedings or issue to such process,

and may, for the purposes of such invitation or reference, invite the parties to attend such information session on the use of mediation, if any, as the Court may specify."

Order 99, Rule 1B further provides:

"in considering the awarding of the costs of any appeal or of any action, [the court] may, where it considers it just, have regard to the refusal or failure without good reason of any party to participate in any ADR process referred to in Order 56A...

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