Whilst mediation can be considered at any point in a dispute, including the period before the claim is issued, the protocols set out under the Civil Procedure Rules (CPR) can be used as a guide during that pre-issue period. The protocols can be found in their full terms at www.justice.gov.uk/civil/procrules_fin/menus/protocol.htm, withtheir aims and scope being to encourage pre-action contact between the parties in the hope of a settlement of the dispute.

For immediate, but brief, guidance as to the court’s advice around alternative dispute resolution (ADR), with mediation being a form of ADR, please see the highlights set out below:

“The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Court takes the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regards to such conduct when determining costs.”

The above paragraph appears as:

• Paragraph 2.16 in the Pre-Action Protocol for Personal Injury Claims.
• Paragraph 5.1 in the Pre-Action Protocol for Clinical Disputes.
• Paragraph 2A.1 in the Pre-Action Protocol for Disease and Illness Claims.
• Paragraph 4.1 (a) in the Pre-Action Protocol for Housing Disrepair cases.
• Paragraph 11 in the Pre-Action Protocol for Possession Claims based on rent arrears.
• Paragraph 3.7 in the Pre-Action Protocol for Defamation.
• Paragraph B6.1 in the Pre-Action Protocol Professional Negligence. in the Pre-Action Protocol.