At the final paragraph of his judgment, Mr Hugh Sims KC said: 

“I should also conclude by noting here that I raised with the parties during the course of the hearing whether or not they had engaged in any ADR or mediation on the applications before me. They confirmed they had not. I consider this is unfortunate as it appeared to me there were a number of matters which would have benefited from further dialogue between the parties, and if such dialogue had occurred this would or should have resulted in resolution of the issue or a narrowing of the issues before the hearing. Resolution or a narrowing occurred on many points during the course of the hearing. I would be inclined to order some form of mandatory mediation between the parties to assist them in resolving any remaining disputes, should a voluntary mediation not now take place, as there are still a number of points between them, and to be worked through, on the account. I consider the amount of costs which have already been incurred on the applications are likely to have the unfortunate effect of further reducing the return likely to be made to those who rank below Desiman and Brooke, assuming both of them are ultimately paid in full. Indeed one of the final deductions identified on Mr Fellows’ most recent redemption statement included further fees of some £870,7474.14. Some of these costs appear to overlap with cost items referred to already above, but some appear to be further costs incurred on these applications. Who should pay those costs and the amounts remain at large. Overall, I have gained the impression that greater dialogue is required, even if no love is lost. “I raised with the parties during the course of the hearing whether or not they had engaged in any ADR or mediation on the applications before me. They confirmed they had not. I consider this is unfortunate as it appeared to me there were a number of matters which would have benefited from further dialogue between the parties, and if such dialogue had occurred this would or should have resulted in resolution of the issue or a narrowing of the issues before the hearing.”

With the courts increasingly nudging (or shoving) parties toward ADR, the message is clear: if you can talk it out, do. It’s hard to disagree; success in court loses its shine when the winnings are swallowed up by the process.