claimed obligatory ADR was. In this way, the Court leaves ambiguity regarding when ADR can be ordered without party consent; it distinguishes ENE from ADR, while many commentators hold the contrary view that ENE is a form of ADR. It hints however that conditions may have changed sufficiently to disregard Halsey, saying “the court’s engagement with mediation has progressed significantly since Halsey was decided.”
Regarding the defendant’s submissions based on the Court Guide and supporting sources, it was found that they cannot be conclusive in this matter since the White Book states that rules “cannot be suspended or disapplied by what may be said in the Court Guides.”
The Court of Appeal emphasised the value of ENE and ADR in resolving disputes, which is likely apparent to judges equally in cases where parties are very willing or where they are hostile to trying ADR. Norris J, with whom the Court agreed, said in Bradley v Heslin with respect to boundary and neighbour disputes:
I think it is no longer enough to leave the parties the opportunity to mediate and to warn of cost consequences if the opportunity is not taken. … the warnings are not being heeded, and those embroiled in them need saving from themselves.
The Lord and Lady Justices of the Court therefore saw no reason to imply a limitation which would require party consent before the Court could order an ENE hearing. An ENE hearing was accordingly ordered.
Conclusion
Halsey, which held that a court did require party consent to order mediation, remains the current position on court ordered mediation. Lomax however paves the way for a potential change in approach: it is clear that, while ADR is effective even where parties are reluctant to participate, the question remains open as to whether a court’s jurisdiction extends to requiring parties to undergo mediation or arbitration absent their consent.
It is hoped that this strong declaration of support for ADR in the UK will remind judges in other jurisdictions, including New Zealand, of the highly effective alternative methods available for resolving commercial and family disputes in conjunction with or outside the court system.
about the author
Sophie Hursthouse Sophie is a law clerk at New Zealand Dispute Resolution Centre. She is studying at the University of Otago.