Silence Is An Unreasonable Refusal To Engage In ADR

The Court of Appeal has decided that a failure to respond to a reasoned invitation to mediate an ongoing dispute is unreasonable, regardless of whether there were good reasons to refuse to mediate. Silence is not an acceptable response and parties must actively engage in attempts to settle their disputes without recourse to court proceedings.

Background

Over 9 years ago, in the case of Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002, the English Court of Appeal established that the court may use its discretion to depart from the usual rule that the successful party should recover its costs if it can be shown that the successful party refused to engage in ADR, and that refusal was unreasonable. That judgment laid down a number of factors to be taken into account in deciding whether refusal was unreasonable:

the nature of the dispute the merits of the case the extent to which other settlement methods have been attempted whether the costs of ADR would be disproportionately high whether any delay in setting up and attending ADR would have been prejudicial whether ADR had a reasonable prospect of success. The Halsey guidelines have since...