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The Working Party agrees that these concerns are important and must be addressed in
deciding which of the options to recommend. After detailed consideration of each of
the issues raised, the Working Party has decided to make the following
recommendations :-
(a)
that the uncontroversial Proposal 68 (for the court to provide litigants with
better information and support with a view to encouraging greater use of purely
voluntary mediation) should be adopted in conjunction with other appropriate
measures to promote court-related mediation;
(b)
that, subject to further study and consultation and subject to detailed rules being
promulgated, the Legal Aid Department should have power in suitable cases to
limit its initial funding of persons who qualify for legal aid to the funding of
mediation, retaining its power to fund court proceedings where mediation is
inappropriate or where mediation has failed; and,
(c)
that Proposal 67 should be adopted, so that, subject to the adoption (after due
consultation) of appropriate rules, the court should have power, after taking into
account all relevant circumstances, to make adverse costs orders in cases where
mediation has been unreasonably refused after a party has served a notice
requesting mediation on the other party or parties; or after mediation has been
recommended by the court on the application of a party or of its own motion.
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