For example, the NHS estimated that from 2000 onwards, the average time for a claim against the NHS with settlements exceeding £10,000 to reach court was five and a half years4. However, it has been propounded that “The satisfactory resolution of disputes is a key issue for any society5” and as such, “Litigation has traditionally been regarded as the dispute resolution procedure par excellence6”.
However, the litigation system has been riddled with problems and Lord Woolf’s review of the civil litigation system underlined concerns regarding the augmenting costs and delay of litigation7. Furthermore, the report found that litigation was too costly, often surpassing the claimant’s application, further compounded by the lack of predictability regarding total costs, perpetuated by consistent delays in concluding such cases8.
Lord Woolf’s report resulted in the Civil Procedure Rules9 (the CPR) with a shifting emphasis towards case management in an attempt to alleviate the delay and expense of litigation, and to approach cases in an interventionist/managerial capacity instead of the traditional adversarial approach10. Indeed Lord Woolf commented that “case management includes identifying the issues in the case; summarily disposing of some issues and deciding in which order other issues are to be resolved; fixing timetables for the parties to take particular steps in the case; and limiting disclosure and expert evidence”11. Lord Woolf’s report also recommended a propensity towards alternative dispute resolution (ADR), with litigation as a last resort option12.
However, Cornes highlights the point that private commercial mediation in particular “does not take place in a legal vacuum, many legal principles are highly relevant to mediation, such as confidentiality, without prejudice, impartiality, conflicts of interest, privilege and so on13.” To this end, Cornes further highlights the fact that the implementation of