Compelling Parties to Judicial Early Neutral Evaluation but a Missed Opportunity for Mediation

This note critically considers the recent case of Lomax v Lomax in which the Court of Appeal, reversing the decision at first instance, held that the courts could, as part of their case management powers, compel non-consenting parties to early neutral evaluation. Although the case concerned a particular form of alternative dispute resolution – judicial early neutral evaluation - the Court of Appeal decision represents a significant development in strengthening and further integrating ADR in general within the civil court process. It is argued that the Court of Appeal decision demonstrates an important and necessary judicial culture shift away from perceiving ADR as simply equating to mediation, and dispute resolution as merely consisting of a narrow two-stream system of mediation and litigation. The decisions reflect a wider understanding and application of those procedural concepts and this is to be encouraged across the judiciary. It is also argued that the rationale underpinning the Court of Appeal’s decision can justifiably be extended to apply to mediation so that, in appropriate cases, the courts can legitimately order parties to explore settlement through mediation. Finally, the Court of Appeal’s failure to take the opportunity to reappraise and finally dismiss the controversial decision in Halsey on the issue of ADR compulsion means that the current tensions and difficulties within the ADR jurisprudence will continue.