Mediation is globally recognized as an effective dispute resolution mechanism. A trained mediator can assist apparently diametrically opposed parties in finding a resolution that avoids the time and costs of court proceedings, especially fully contested and lengthy final hearings. Over 50 countries have signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) under which settlement agreements resulting from a mediation process can be recognized and enforced internationally without the need to bring a court claim for breach of the settlement agreement.
In England, where mediation is well established and continues to increase in popularity, parties to potential court claims have long been required to engage in pre-action correspondence, and to consider a form of alternative dispute resolution (ADR), (resolution outside of the court process, whether by negotiation, mediation, arbitration or expert determination), before formally issuing a claim.
The Ministry of Justice (MOJ) is, however, currently consulting on the scope of the first ever mandatory requirement on parties to participate in mediation as part of the litigation process. This article will provide an overview of the steps a party ought to take before issuing a claim in England, and then explain how the MOJ’s consultation might impact these steps.
Pre-Action Protocols (PAPs)
The pre-action steps parties are expected to take before issuing claims in England & Wales are codified in the Civil Procedure Rules (CPR). There are both a general scheme applying to all civil claims (contained in a practice direction, which operates as guidance to the CPR), and specific protocols for particular types of disputes, including construction & engineering, professional negligence, personal injury, debt claims and judicial review.
The six-fold objectives of the PAPs are to help the parties to:
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