Both the Government and the Courts have been determined to promote Mediation as a prime form of dispute resolution.

The Civil Procedure Rules, the Commercial Court Guide, the Queen’s Bench and Chancery Division Guides, and the various Pre-Action Protocols have all sought to encourage parties and prospective litigants to consider ADR as early as possible in their disputes.

The Courts, however, have increasingly adopted the ‘stick’ rather than the ‘carrot’. In 2002, Lord Justice Brooke created a significant precedent when the Court of Appeal disallowed Railtrack PLC their costs notwithstanding that they had been successful on appeal: Dunnett v Railtrack PLC [2002] 2 All ER 850, CA.

More recently, In Halsey v Milton Keynes General NHS Trust[2004] 1 WLR 3002, the Court of Appeal stated:

"All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR. The Court of Appeal indicated that the courts would be robust in their encouragement, and parties will now face significant adverse costs consequences if they unreasonably refuse to consider mediation."