Failing to attempt to mediate – Can your client afford to?
Mediation has increasingly raised its head above the parapet recently. Back in 2004, the case of Halsey addressed the fact that mediation in many ways addressed the parties 'real' needs and 'real' financial burden of litigation. It also recognised that there is a range of outcomes which can provide a 'win-win' outcome. In this case the court deemed a refusal to participate in ADR as 'unreasonable' in the course of litigation.
The recent Court of Appeal case of PGF 11 SA & OMFS Company Ltd  has catapulted mediation into the limelight and provides the strongest support of ADR yet. The case considered the question 'What should be the response of any court to a party which, when invited by its opponent to engage in ADR, fails to even have the courtesy to respond?' Briggs LJ, giving leading judgment, made reference to the ADR Handbook and indicated that an offer of ADR should never be ignored. Any offer should be responded to in writing and any reasons as to why ADR is not appropriate should be set out clearly and concisely. If there is believed to be any missing relevant information which would hinder mediation, this should also be raised with the opposing party.
Most importantly, Briggs LG stated that it was important NOT to close off the prospect of mediating at any point during the conduct of a case and that the concept should ALWAYS be at the front of a lawyer’s mind as an avenue worth perusing. Briggs LG however maintained the status quo with regards to the penalty which should be imposed should a party refuse to mediate; that being a party would only be ordered to pay the costs of the unsuccessful party in exceptional circumstances.
Undoubtedly Mediation will become prevalent in a litigator’s working life over the coming months and years. It is indeed something that should be embraced and encouraged. The importance and success of the role of ADR has been emphasised and reinforced by His Lordship and he has embraced the court's role in encouraging more proportionate conduct of litigation. This in itself is a major milestone for the concept of Mediation and one which is hoped to be the start of an ADR revolution!
Sally-Ann is an expert in Civil and Commercial Litigation and Mediation and a Consultant at Berlad Graham LLP.
If you want more information on Civil and Commercial Mediation or feel you have a case that requires this expertise please contact Sally-Ann on the details below
t 020 7887 1943
m 07854 974508