New Rules of the Superior Courts-Mediation and Conciliation

On 16th November 2010 court rules regarding mediation and conciliation came into force. Under these rules, similar to a provision in the Commercial Court Rules, the court can order a hearing adjournment for such time as it considers just and convenient to allow the parties to engage in an alternative dispute resolution process.

ADR processes include mediation, conciliation and such other dispute resolution processes as are approved by the court. However, arbitration is excluded. Arbitration is governed separately by the Arbitration Act 2010 and its section 32 complements the new court rules on ADR as it allows for the arbitration of disputes which are already subject to litigation.

The court can make the ADR adjournment order on the application of any of the parties to the dispute or of its own motion and must have regard to all the circumstances of the case. Should one of the parties wish to apply for such an order it must do so no later than 28 days before the date on which the proceedings are first listed for hearing. The application is to be made by motion to the court on notice to all other parties and is to be grounded upon an affidavit.

In order to make effective use of the new provisions, the court may make an order extending the time for compliance with these rules or any order of the court in the proceedings or may make any other order that it considers to be beneficial to the proceedings.

Encouraging the parties to engage in ADR aims at the economic use of the courts resources and time. Therefore, a sanctioning provision is in place whereby the court can have regard to the refusal or failure without good reason to participate in an ADR process by a party when considering the awarding of the costs of the litigation.