There is no express requirement in the CPR or elsewhere for a party to a dispute to mediate or to use any other form of alternative dispute resolution (ADR).

Mandatory ADR has been considered (see the 1999 consultation paper Alternative Dispute Resolution) but was rejected at that early stage of the Woolf reforms. The Court of Appeal in Halsey -v- Milton Keynes NHS Trust rejected it again, concluding that the court should encourage parties to mediate but not compel them to do so. Parties who are unwilling to mediate should not be ordered to do so but a judge should not accept such unwillingness at face value. An ADR order was made against an unwilling party in Shirayama Shokosan Company Limited -v- Danova Limited 2003, with the judge holding that it was clear that the court had jurisdiction to direct alternative dispute resolution, even though the parties might not be willing to submit to it. This decision was not referred to in Halsey. Although such an order might still be made in such a case, the judgment would not now be worked so forcefully in favour of compelling unwilling parties to mediate.

It is worth mentioning that Couwenbergh v Valkova decided on the 27th May 2004 contradicts previous rulings that fraud cases were not suitable for mediation.

52.”The parties had it, and still have it, in their power to alter the destiny of this appeal and this sad case. We urged them, and continue to urge them, to do so through mediation. It is a case crying out for alternative dispute resolution.

54. ”When costs do finally have to be allocated, we hope these observations will be borne in mind when the court comes to apply the guidelines in Halsey v. Milton Keynes General N.H.S. Trust EWCA [2004] Civ. 576 on how to deal with failures to mediate despite the encouragement to do so.”