ADR in clinical negligence claims
Produced in partnership with Marcus Weatherby
ADR in clinical negligence claims

The following PI & Clinical Negligence guidance note Produced in partnership with Marcus Weatherby provides comprehensive and up to date legal information covering:

  • ADR in clinical negligence claims
  • ADR in the CPR
  • NHS Resolution Mediation
  • What is ADR and how can it be used?
  • Pros and cons of ADR
  • When is ADR appropriate?
  • Failing to engage in ADR
  • Mediation agreements and settlement orders

ADR in the CPR

The Civil Procedure Rules (CPR) state that litigation should be a last resort and, that the parties should consider whether negotiation or some other form of Alternative Dispute Resolution (ADR) might enable them to settle their dispute without commencing proceedings.

Jackson LJ set out his intention in his costs report that:

'no case should come to trial without the parties having undertaken some form of alternative dispute resolution to settle the case'

The use of ADR is expanding. In July 2016 at the request of the Ministry of Justice the Chartered Institute of Arbitrators prepared a White Paper on alternative dispute resolution (ADR) and civil justice reform. It concluded that there is scope for a significant expansion of the use of commercial ADR to reduce the case load in courts.

Higher court fees and the willingness of the Judiciary to embrace ADR as means of resolving disputes in a cost effective and time saving manner. It means that parties who unreasonably refuse a request to mediate a case will face sanctions within traditional litigation.

The CPR has incorporated mediation so far as it is able to do so. There is still a judicial reluctance to impose mandatory or ordered mediation because it arguably would infringe article 6 of the European Convention on Human Rights.

CPR Part 26.4 provides parties with the opportunity