Compelling Parties to Judicial Early Neutral Evaluation but a Missed Opportunity for Mediation
journal contribution
posted on 2019-10-07, 10:42authored byMasood Ahmed, Fatma Arslan
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.
History
Citation
Civil Justice Quarterly, 2019, In Press
Author affiliation
/Organisation/COLLEGE OF SOCIAL SCIENCES, ARTS AND HUMANITIES/Leicester Law School
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