They were subject to a modest extension in PGF II SA v OMFS Company 1 Ltd EWCA Civ 1288, in which a written invitation by the claimant’s solicitors to participate in mediation was met with complete silence by the defendant. The Halsey guidelines have stood the test of time and been applied in many cases since. Whether the ADR had any reasonable prospect of success.Whether any delay to the trial caused by setting up and attending the ADR would have been prejudicial.Whether the costs of the ADR would be disproportionately high.The extent to which other settlement methods have been attempted.The nature of the dispute – while ADR may not be appropriate in all cases (for example, where there are allegations of fraud or where it is considered that a binding precedent would be useful) few cases are unsuitable for ADR by their very nature.In that case, the Court of Appeal laid down a non-exclusive list of factors for deciding whether a refusal to participate in ADR was unreasonable. Since 2004, an unreasonable refusal to participate in ADR has been identified as conduct which the court may properly punish by imposing costs sanctions ( Halsey v Milton Keynes General NHS Trust EWCA Civ 576). The English courts are getting tougher on parties that refuse to participate in alternative dispute resolution (ADR), the most common form of which is mediation.
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