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29.3
The Working Party's position generally
The Working Party acknowledges that there is substance in the foregoing objections
and that it is important for them to be addressed. Indeed, it is important that they
should, if possible, be satisfactorily met since there is potentially great value in being
able to provide an option within our civil justice system for the parties to resort to
ADR (and particularly to mediation
).
Thus, in suitable cases, mediation may result in very substantial savings in costs.
While a mediation itself involves the incurring of costs - and therefore a risk of
additional costs should it fail - such costs are likely to be much lower than the costs of
pursuing court proceedings to the bitter end. With relatively simple cases, as we have
seen, mediation may take no more than a day with the case often settling on the day.
Costs savings can be even more dramatic in relation to complex and hard-fought
cases. An example of such a case (involving a complex shareholders' dispute
resulting in three concurrent actions with multiple parties and with allegations of
conspiracy in one action) can be found in the judgment of Arden J in Guinle v Kirreh
(Unreported, 3 August, 1999):-
"In the course of the hearing, the parties have provided me with estimates of their costs.
Taking the share action and the conspiracy action together for this purpose (and on the
assumption of a five day trial for the share action), the third, fourth and eighth defendants
have incurred some £625,000 worth of costs and expect to incur about a further £820,000.
Mr Kirreh, Kinstreet and Interfisa have incurred some £650,000 and their estimated further
costs are some £786,000. The ninth defendant has incurred some £132,000 in the conspiracy
action and estimates that he will incur a further £421,000 approximately. The costs of ADR
are much less. Miss Allan's instructing solicitors estimate that they would incur some
£27,500. The costs of the mediator would be some £3,000 per day, together with preparation
time. Thus the costs to be saved by mediation, if successful, would be very substantial."
Notes
For reasons discussed below, mediation (coupled with any other appropriate consensual forms of
ADR) is considered the most suitable form of court-annexed ADR. Accordingly, the focus of the
present discussion is on mediation rather than other forms of ADR.
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