Various decisions of the English courts have demonstrated a pro-ADR attitude and support for the principle of allowing contracting parties the freedom to select a preferred dispute resolution procedure.

In Peterborough City Council v Enterprise Managed Services Ltd [2014] EWHC 3193 (TCC), the Technology and Construction Court granted a stay of proceedings on the basis that cl 20 of the Silver Book in the FIDIC suite of contracts required the dispute to be determined by a Dispute Adjudication Board as a pre-condition to any court action.

In addition, while English courts will not go so far as to compel parties to engage in mediation, when assessing costs they have demonstrated a willingness to take into account the parties' engagement in the process. In Garritt-Critchley v Ronnan [2014] EWHC 1774 (Ch), following a late settlement, the successful claimant's costs were ordered to be paid on an indemnity basis because of the defendants' unreasonable refusal to mediate.

It appears that support for mediation is spreading further afield, with, for example, Spain introducing a Mediation Act in 2012 intended to promote its use by establishing a set regulatory framework. While use of mediation is increasing, a recent Spanish judgment seems to indicate a difference in attitude to the promotion of mediation by the Spanish courts and may serve so as to inhibit its use when interim measures are a consideration, even with the inclusion of an express mediation pre-condition provision in the relevant contract.

In judgment no 38/2014, the Madrid Superior Court considered the effect of the inclusion of a multi-tiered dispute resolution mechanism in a contract whereby mediation was a pre-condition to the bringing of arbitration proceedings. Under the agreement, disputes had to first be submitted to mediation and if no agreement had been reached within a month of the first mediation session, the dispute could then be submitted to arbitration.

The dispute was submitted to mediation but even before the first mediation session, the claimant proceeded to submit a request for arbitration on the basis that there was a need to obtain interim measures from the arbitrators. While, under the Spanish Arbitration Act, the courts do have the power to annul an arbitral award if arbitral proceedings have not complied with the parties' agreement, the arbitrator proceeded to issue a partial award on the basis that the Mediation Act expressly allows requests for interim measures as an exception to the general prohibition of judicial or extrajudicial actions to be commenced during the mediation.

The respondent argued that because the claimant had acted in breach of the arbitration agreement the partial award should be set aside. However, the Madrid court found that, while the mediation provisions in the contract had been breached, the arbitration agreement had not been invalidated, because the agreement anticipated the possibility of the parties seeking interim relief through arbitration proceedings.

Conclusion

In making its decision, the court noted that in this particular case the mediator had indicated that the parties were a long way from reaching agreement in the mediation, however this was almost inevitable given the arbitration proceedings had already been commenced. It is likely that in future other parties wishing not to engage in mediation will seek interim directions for an arbitrator as a way of undermining the mediation process. There is perhaps a little way to go before the Spanish courts adopt the robust support for mediation demonstrated by courts in the UK.