It is not uncommon for one or both parties in litigation to seek to obtain a stay of some part of the proceedings in order to use some form of ADR, usually mediation. There are different schools of thought on how this matter should be dealt with. The standard directions promulgated by the Ministry of Justice and based on the, so-called Ungley order, encourage mediation but do not stop the proceedings in order to make it happen. The other school of thought follows the line put forward by Sir Alan Ward in Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 and suggest that the court can direct a stay either at the behest of one or both of the parties or of the court’s own motion for the purpose of ADR. The Jackson ADR Handbook appears to endorse the second school of thought by setting out (at para 9.04) that a Court can encouraged ADR by being willing to grant a stay for ADR to be considered and used.

A recent decision in the Technology and Construction Division of the High Court appears to come to a dofferent view however. In CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd & Ors[2014] EWHC 3546 (TCC) Mr Justice Coulson declined at a CMC to order a window in the directions for the operation of ADR. His view that this was an unnecessary extra delay when there was plenty of opportunity in the overall case management timetable for ADR to occur without a specific window in the proceedings for this purpose. He also, quite justifiably, stated that a window for ADR inevitably leads to the trial being delayed by the same period of time which is contrary to the classical view of good case management to get the case trial ready and heard as promptly as possible. For much the same reasons he was distinctly cool about stays for ADR on the basis that they can be tactical devices designed to buy time or can be used tactically where there is a degree of uncertainty about when a stay should come to an end.

What This Means

This case could be viewed simply as a fact specific situation. Both parties were seeking an ADR window but were in violent disagreement as to when it should be. Therefore it was not reasonable to enforce such a window at one stage or another. The comments on stays are arguably obiter and could simply be ignored by other judges, especially as they appear to run contrary to the tenor of the Jackson ADR handbook. Indeed Mr Justice Coulson is very careful to make clear that he is very much supporting the use of ADR in settling disputes in the TCC and elsewhere.

A Practical View

I do understand for Mr Justice Coulson's view on ADR windows. Failed ADR is time wasted. Creating an extended window for it to take place is of little benefit. Part of the problem is that parties are seeking extended stays and windows for the purpose of mediation. A sensible party that has considered ADR from the outset should be able to prepare for and carry out a mediation without an extended window for that express purpose as a part of their overall case preparation. This also serves the other purpose of ensuring that mediation remains a proportionate part of the overall litigation process without becoming an all-consuming beast that takes over the process. Mediation is part of the wider dispute process and should not become a process of its own. I have, of course, written a fair bit on proportionate and practical mediation so I will admit a bias!

I do not, however, agree with the views expressed on mediation stays. I agree that they should be used with care and sparingly but there are times where parties come to mediation late and giving a short stay in already existing directions to allow for mediation before another costly step is taken seems eminently sensible and a useful way of controlling litigation cost without unduly putting back the case timetable. That said such stays should be brief (a matter of days) and should be used sparingly where the parties are genuinely set on mediation. Mr Justice Coulson does state that there are times when a stay may be useful but I am not convinced that it is quite as rare as his judgement implies although I would certainly agree with his sentiment that they should be used "sparingly".

Where We Go From Here

In truth the existing powers of costs management and penalties and the use of Ungley-style orders requiring parties to explain why they have not considered mediation are probably sufficient if used robustly. However, parties should consider whether a certain amount of early disclosure and an early mediation, pre issue, might not be better than a rushed attempt to seek a stay or window in a busy trial timetable which might be refused. It is surely more proportionate to save costs by not incurring them at all than by beginning a process with no intention of ending it.

As a last point, it is worth noting that Mr Justice Coulson highlights the tension between ADR and obtaining a prompt trial. He takes the view that effective case management and the prompt trial come first. I am not sure that this is necessarily right and it may be that over time that balance may be changed in favour of proportonate and cost effective ADR.