Following the decision in Churchill and the Civil Procedure Rule changes on 1st October 2024, which placed greater responsibility on parties to actively engage in ADR, Trust Mediation is now being approached with orders from court to use ADR.
The High Court Judgement of DKH Retail Ltd v City Football Group Ltd [2024] EWHC 3231 (Ch) (the Superdry case, as it has been referred to) is a reminder and working example of how and why Mediation works, even when you’re not quite convinced that it can and will help.
In the case of DKH Retail Ltd v City Football Group Ltd [2024] EWHC 3231 (Ch), Judge Miles ruled that:
1. Even where the parties’ positions are diametrically opposed mediation has been shown to be successful.
2. While there was some force in the defendant’s view that mediation was too late, there can be an advantage in positions being crystallised through pleadings and witness statements.
3. Mediation can often overcome an entrenched reluctance of parties to negotiation.
4. The range of options available in mediation to resolve the dispute went beyond the binary answer a court could provide.
5. The mediation was likely to be ‘short and sharp’ since little documentation would be required, and mediation would not significantly disrupt the parties’ preparations for trial.
6. On the material available to the court, it seemed possible for the parties to find a workable date for the mediation, despite the defendant’s contention that it had very limited availability prior to trial.
A postscript was added to the judgement to confirm that the case had successfully settled out of court, demonstrating the power of bringing parties together to mediate, even when at first they don’t wish to engage.
Although this was not a Clinical Negligence or Personal Injury case, lawyers need to be aware of the danger of opposing or not properly considering the use of ADR in the settlement of claims.
Meera Lachani of Trust Mediation comments;
“This case serves as a reminder that is never too late to re-consider reaching a resolution out of court, even when Trial is around the corner. Having been unable to reach an agreement previously does not render the dispute incapable of settlement, particularly when you have the benefit of a third-party neutral facilitating dialogue and focusing discussions in a meaningful way.’
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