Halsey –v- Milton Keynes General NHS Trust  EWCA 3006 Civ 576
This is now regarded as the landmark case on whether the mediation route should be followed, and it provides a clear checklist of when a party is justified in refusing it. The court, whilst recognising the benefits of mediation, stated that not every case is suitable. It was also stated, obiter, that to force the parties to mediate would create an unacceptable obstacle in the way of access to justice. This was a reference to Article 6, but in speeches in March and May 2008 both Lord Phillips and Sir Anthony Clarke have made clear that Article 6 is not in point. They both take the view that mediation is not a barrier to a fair trial. There are extracts from both of those speeches, below.
In Halsey, the court reaffirmed the general rule that the losing party should pay the costs of the winning party, and said that departures from that rule should be the exception. It then stated that the unsuccessful party must be able to show that the successful opponent acted unreasonably in refusing to mediate. A party who refuses ADR may be said to have acted reasonably if any of the following factors applied:
- The nature of the dispute, since some cases are not suitable for ADR; where for example it is important to establish a principle which can be applied in similar disputes.
- The merits of the case, since a party who reasonably believes he has an unassailable case may be justified in refusing ADR, whereas a party who unreasonably holds that view may not.
- The extent to which alternatives to a trial have already been tried, though the court did observe that mediation often succeeds when other methods fail.
- The cost of ADR. In many cases the cost is modest, especially as against the costs of a lengthy trial; but in low value cases the cost of ADR may be disproportionate.
- The damaging effect of delay caused by a stay for ADR, especially when a trial date is imminent.
- Whether ADR has a reasonable chance of succeeding.
- Whether, and how robustly, ADR has been encouraged by the court.
This is valuable guidance, but since the onus is on the losing party to show that their refusal to consent to ADR was reasonable, the party who refuses ADR runs a high risk of a costs sanction.