After a Claim has been issued

There is a continuing duty on parties to a dispute to consider the possibility of settlement at all times (para 8.4 of Practice Direction - Pre-Action Conduct). That includes alternative dispute resolution ("ADR") and in particular mediation.

Unless their case involves patents, registered or registered Community designs, chip topographies or plant varieties, the parties may request a stay to allow their case to be settled by ADR or other means when they complete their allocation questionnaires (CPR 26.4 (1)). The court will grant that request if all the parties agree or the court of its own initiative considers such a stay appropriate. 

Parties to patent, registered design, registered Community design, chip topography or plant varieties cases are nevertheless encouraged by para 10.1 of the Patents Court and Patents County Court Guide to consider mediation, conciliation and other forms of ADR as an alternative means of resolving disputes or particular issues within disputes and the court may adjourn a case for a specified time to encourage and enable the parties to try ADR.

Appendix 7 of the Admiralty and Commercial Court Guide contains a draft ADR order. Paragraph 1 provides for the parties to exchange lists of neutrals or panels who are available to conduct ADR procedures by a specified time. They are given a deadline to agree a neutral or panel.  Failing such agreement the case management conference will be resumed to enable the court to facilitate the appointment of a neutral or panel. They are then required to "take serious steps" to resolve their dispute within a specified time. If the dispute is not resolved within that time, the parties have to tell the court what steps were taken and why the steps failed.

If NIPC Mediation is chosen as the panel but the parties cannot decide on a mediator the NIPC Ltd. will choose one in accordance with rule 4 (8) of the NIPC Mediation Rules.  A request to the company under rule 4 (8) must be supported by a witness statement exhibiting correspondence of the parties' attempts to agree the appointment (Condition 3 (1) of NIPC Mediation's Terms of Business). It must also be accompanied by a £50 appointment's fee.

Once the mediator is appointed it will be up to him or her to decide how it is to proceed. If he or she calls a meeting the company will make all necessary arrangements. The mediation will continue until the dispute is resolved, one or other party walks away or the mediator decides that there is no real prospect of settlement.