A Judge’s Order to Mediate – A New Zealand Perspective
BY TONY ALLEN, CEDR
In this article Tony Allen observes that judges are not imposing sanctions on those who refuse to mediate. “Although the CJC report Compulsory ADR suggested that mandating mediation was not only lawful but desirable, nothing has yet come of that in practical terms.” he says. He points out an example from new Zealand to show what can be done differently.
A special thanks to Nina Khouri for highlighting this decision.
“One Factor Among Many”
My article “One factor among many: sanctioning refusal to mediate” noted a trend among some judges of flinching from imposing costs sanctions on a party who refused to mediate, even unreasonably.
Costs sanctions are currently the highest form of intervention that courts will adopt for such a failure. Although the Civil Justice Council report Compulsory ADR suggested that mandating mediation was not only lawful but desirable, nothing has yet come of that in practical terms. The only provision in the CPR for ordering ADR in non-family civil claims in in CPR3.1(2)(m), which provides that:
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.
Lomax v Lomax
Lomax v Lomax glossed over that provision by finding that the court could order a judicial evaluation even if one party opposed the idea. Counsel for the party opposing a judge-made evaluation order cited Halsey v Milton Keynes NHS Trust, seeking to argue that ENE (by analogy with mediation) could not be ordered without consent of the parties, and that if one party said no to ENE it could not be required of them by court order. The crucial part of the appeal judgment in Lomax reads: