Forced to Mediate?
No party should ever be forced to mediate.
No party should be held to ransom by a legally ‘hopeless’ claim.
You always have the option to say 'no' to ADR. You can call time on mediation at any stage in the process. The 'gift' of mediation always lies in the participants owing the process. Nothing is ever decided for you.
You can weigh up the risks of time, and the consequences of legal costs while pursuing mediation, or not, as part of your strategy.
For many litigants, it can seem as though you have no choice but to mediate. That's not strictly true.
You always have a choice, but if that choice costs all the parties money which could have been avoided, then you may face some costs penalties by the court. Or not.
You'll never know for sure. Litigation always carries a litigation risk. Right up until its decided for you, by a court.
If you really don't want to mediate...
- Provide full reasons why you don't want to mediate, to lessen the risk of any adverse cost consequences.
- Be clear on any obstacles to mediation that might exist, and review yoru reasons on an ongoing basis.
- Remember, you can't ever be compelled to mediate. Unmeritous claimants might use the threat of cost sanctions to extract a settlement even where the claim is without merit. A court will not be kind to this sort of tactic.
- Know your rights: no court can force you to mediate, though they can lean heavily on you and may take a dim view if you don't without good reasons.
- Know your wants, needs, priorities and reasons.
- Ponder the snippets below and assess, assess, assess. And keep assessing them thoughout the dispute.
Lawfully force ADR upon the parties?
Halsey v Milton Keynes General NHS Trust [2004]
“[the] compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6 [of the ECHR]...The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate."
Dyson LJ
Churchill v Merthyr Tydfil County Borough Council [2023]
"as a matter of law, the court can lawfully stay existing proceedings for, or order, the parties to engage in a non-court-based dispute resolution process"
Master of the Rolls, Sir Geoffrey Vos
Reasonable Refusal to Mediate?
Mason and others v Mills & Reeve [2012]
"A reasonable refusal to mediate does not become unreasonable simply by being steadfastly, and for cause, maintained.”
Davis LJ
DSN v Blackpool Football Club [2020]
"No defence however strong justifies by itself a failure to engage in any kind of alternative dispute resoution"
Griffiths J
Richards and anr v Speechly Bircham LLP [2022]
"The Defendants' unreasonable conduct in relation to mediation is in my judgment sufficiently marked by an order that they pay the Claimants' costs down to and including trial on the standard basis. This is an appropriate 'sanction' for them not engaging in a process of ADR which might have curtailed those costs in a significant ly lwoer sum at an earlier stage of the proceedings."
HH Russen
The Stubborn Mule?
Wright v Michael Wright Supplies Ltd [2013]
“You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable"
Sir Alan Ward
The Robust Encouragement?
Halsey v Milton Keynes General NHS Trust [2004]
"Parties sometimes need to be encouraged by the court to embark on an ADR. The need for such encouragement should diminish in time if the virtue of ADR in suitable cases is demonstrated even more convincingly than it has been thus far. The value and importance of ADR have been established within a remarkably short time. All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR. But we reiterate that the court’s role is to encourage, not to compel. The form of encouragement may be robust...”
Dyson LJ
The Mediation Maths
What's the common ground?
Where's the clarity?
Where's the dispute core?
What does the landscape look like after a court win?
What does the landscape look like after a court loss?
What is enough to move on?
What are the risks of staying stuck?
What are the benefits of the dispute being over?
Where can you close the gap?
Solutions in ADR
A court cannot usually reach a solution that can please all parties.
But participants of mediation can.
Only the participants know pieces of information that might be game changers.
The positions that can move by talking, unlocking.
The participants creation of movement and momentum.
Its like a game of chess because it's three-dimensional.
It's intuitive, adaptive, emotional.
The difference: no checkmate.
Advantages of Mediation
Time savings to resolve dispute.
Cost saving to resolve disputes.
Better chance of satisfactory outcome for all.
Less chance of future disputes.
More open channels of communication.
More chance of preserving or enhancing relationships.
Personal growth and self-awareness.
Disadvantages of Mediation
Information may be revealed that a party would prefer to keep for court.
This only becomes an issue if the participants do not settle.
Resolution is Revolution
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