Why should you mediate (and what happens if you don’t)?
A mediation is essentially a without prejudice meeting attended by the parties, their lawyers and an independent and neutral mediator.
The mediator works with the participants to facilitate a negotiated settlement – he or she is not there to judge the case and does not issue any binding decision at the end of the process. The parties retain complete control over whether the case settles and if so, the terms of the settlement reached.
- High success rate – Our experience as a firm and that of the Centre for Effective Dispute Resolution (“CEDR”) is that the vast majority of cases which go to mediation settle either on the day or soon after. CEDR report that 67% of mediated cases settled on the day.
- Reduces time and costs – Mediation (especially at an early point in a dispute) is a more cost effective way of resolving a dispute than taking a case to trial. It is also much quicker, freeing up the time of those involved. Recent research by CEDR suggests that by achieving earlier resolution of cases that would otherwise have proceeded through litigation, commercial mediation will this year save business around £2.8 billion a year in wasted management time, damaged relationships, lost productivity and legal fees.
- Control – The parties feel a greater sense of satisfaction at the end of the process as they retain a significant degree of control throughout and ultimately determine the outcome.
- Variety of outcomes – Litigation offers a limited scope of legal remedies. The outcomes in mediation are potentially more diverse and creative; they are ultimately decided by the parties and can be adapted to meet their commercial needs. The parties can agree terms of settlement that contain provisions that the courts have no power to order.
- Confidentiality – Unlike litigation, both the mediation process and any information disclosed remains confidential. Confidentiality also prevents any potential adverse publication and embarrassment which could damage commercial affairs.
- Choice of mediator – Parties usually select the mediator and can appoint a mediator from their industry, who need not be a lawyer. This enables parties to choose a mediator best suited to the dispute. This can be particularly beneficial in complex technical and industry specific disputes.
- Less adversarial – This can enable commercial relationships to be maintained where they otherwise may have been damaged irreparably by aggressive and adversarial court proceedings.
- Costs risk if you unreasonably refuse to mediate – You should expect the court to impose costs sanctions if you ignore or unreasonably turn down an invitation to mediate or indeed if you fail to consider mediation at all.
Why not mediate?
- No guaranteed outcome – There is a risk that despite investing time, money and effort in a mediation, a settlement may not be achieved. If there is no agreement, the dispute will remain to be resolved through the courts and the mediation will add a further layer of costs to that procedure. That said, even an unsuccessful mediation usually helps in narrowing the issues in dispute and therefore potentially save costs.
- Voluntary – There is no requirement to commence or to continue with mediation. Either party can walk away from the process at any time.
What do the courts have to say about mediation?
Mediation is not compulsory but it is very strongly encouraged by the judiciary and must be considered in every case.
It is a brave litigant who refuses to mediate without a very good reason. While the courts cannot (yet) order a party to mediate, they will readily exercise their discretion to penalise a party who unreasonably refuses to mediate by imposing cost sanctions. This means that a successful party who unreasonably refused to mediate may be deprived of all or part of the costs that it would otherwise have been able to recover from its opponent. For an unsuccessful party, this means being ordered to pay to your opponent more costs than would have been the case, had you mediated. Such orders are designed not only to penalise unreasonable conduct but to send a very clear message to encourage other litigants to ignore mediation at their peril.
In considering whether a party has unreasonably refused to mediate, the courts will consider the following non-exhaustive list of factors (known as the Halsey principles – Halsey v Milton Keynes General NHS Trust  EWCA Civ 576):
- The nature of the dispute – but most cases will be suitable for mediation and it will only be an exceptional case that is not – such as where injunctive relief is sought or there is an issue of public policy at stake.
- The merits of the case – although even very strong cases are suitable for mediation. “All or nothing” cases have also been held to be suitable to mediate and parties penalised in costs for not submitting such disputes to mediation.
- Other settlement options – for example, if offers of settlement or other attempts to resolve matters have been made. However, often mediation will succeed when other attempts have failed and so this is not failsafe.
- Costs of the mediation – this could be a reason, particularly if these costs are disproportionate to the amount in dispute. However, for most cases, the costs of a mediation will be a dip in the ocean compared to the costs of fighting a case to trial.
- Delay – if mediation is proposed close to trial and would jeopardise the trial date, this might be a sufficiently good reason.
- Prospects of the mediation succeeding – it is not very difficult to persuade a judge that there was a reasonable prospect of the mediation resolving the dispute – saying that the parties are too far apart will not wash.
- Other factors including judicial encouragement to mediate, whether further expert evidence is first required or the impact of any Part 36 offers made. If a judge has suggested you mediate that should leave you in little doubt that a costs sanction will follow if you fail to do so.
You should also not ignore an invitation to mediate – silence in response to such an offer will generally amount to an unreasonable refusal, regardless of whether there are, in fact, good reasons for refusing to engage in ADR (PGF II SA v OMFS Company 1 Ltd  EWCA 1288).
Mediation continues to establish itself as a cost effective, practical and commercial manner of dealing with disputes. It is not a panacea but it does, in most cases, give the parties a very good chance of resolving their differences. A party who refuses to accept an invitation to mediate, without very good reason, does so at considerable risk and can expect sharp criticism and a costs penalty from the court, regardless of the eventual outcome of the case at trial.