Q&As

To what extent do arbitral tribunals (governed by English law) apply the Halsey approach following a failure to mediate under a tiered dispute resolution clause?

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Published on LexisPSL on 12/12/2017

The following Arbitration Q&A provides comprehensive and up to date legal information covering:

  • To what extent do arbitral tribunals (governed by English law) apply the Halsey approach following a failure to mediate under a tiered dispute resolution clause?

To what extent do arbitral tribunals (governed by English law) apply the Halsey approach following a failure to mediate under a tiered dispute resolution clause?

The English courts have imposed costs sanctions on litigating parties who have unreasonably failed to mediate and one of the leading cases in this regard is Halsey v Milton Keynes General NHS Trust. See Practice Note: Costs sanctions for refusal to mediate for, among other matters, more information on that case and how it has been interpreted by the English courts in the context of litigation proceedings.

One of public policy reasons for the English court’s decision to sanction parties in costs for unreasonable refusing to mediate in litigation is that the court resources are finite and, if possible, the parties should resolve their disputes without recourse to the courts or with limited court intervention. However, it may be suggested that no equivalent public policy exists in arbitration as arbitration is a private, consensual dispute resolution procedure where the parties (or those funding the parties) are paying for the tribunal’s time and expertise.

While not clear from the information provided in your query, the parties’ use of mediation as part of their agreed dispute resolution process may be entirely voluntary or it may be mandatory and a condition precedent to the commencement of final and binding arbitration proceedings. For a discussion of

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