Posts in Refusing to mediate
Beware of Not Mediating a Dispute

A recent Irish High Court decision reduced a costs award. This reduction occurred because the plaintiffs’ solicitor failed to comply with the statutory obligation to advise about mediation before commencing proceedings. An English court has also recently imposed a greater reduction on recoverable costs arising from a party’s refusal to consider mediation. Gearoid Carey and Gerard Kelly, partners at Mason Hayes & Curran, examine this decision in the context of an apparent greater judicial willingness to get parties to mediate or else suffer potential cost consequences.

https://www.mhc.ie/latest/insights/beware-of-not-mediating-a-dispute#page=1

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Refusing to mediate, When to mediateNic ScampionBack to all Resources
Can unwilling parties be compelled to engage in alternative dispute resolution in litigation?

A recent Court of Appeal decision in England ruled that parties can be compelled to engage in alternative dispute resolution (ADR), departing from the traditional view that ADR is purely voluntary. While this decision raises questions about the future of compulsory ADR in Scotland, no similar requirement currently exists, though the ruling may influence future procedural developments.

https://www.mfmac.com/insights/litigation-dispute-resolution/can-unwilling-parties-be-compelled-to-engage-in-alternative-dispute-resolution-in-litigation/

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Refusing to mediate, When to mediateNic ScampionBack to all Resources
Compulsory ADR out of the weeds - will the court order parties to mediate?

Nicola Bridge, Leah Alpren-Waterman and Rob Wilson of Mishcon de Reya LLP explain that the recent UK Court of Appeal judgment in Churchill v Merthyr Tydfil CBC  [2023] EWCA Civ 1416  signifies a significant shift towards compulsory ADR, departing from the previous stance set in Halsey v Milton Keynes General NHS Trust; it highlights the court's newfound authority to order parties to engage in ADR, provided it aligns with principles of fairness, legitimate aims, and proportionality to achieving those aims and marks a pivotal moment in the evolution of ADR within the civil justice system.

https://www.mishcon.com/news/compulsory-adr-out-of-the-weeds-will-the-court-order-parties-to-mediate

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Case reports, Refusing to mediateNic ScampionBack to all Resources
A "sanction" can be the consequence of an unreasonable refusal to mediate in the Commercial Court

Stevens & Bolton, an independent UK law firm, write that the High Court ruled that while an unreasonable refusal to mediate can be a factor in cost awards, it does not automatically result in severe sanctions, as seen in Paul Richards v Speechly Bircham LLP. The decision highlights the court’s broad discretion in cost assessments, reinforcing that parties should engage in mediation to avoid potential financial consequences but that a refusal alone does not guarantee a punitive outcome.

https://www.stevens-bolton.com/site/insights/articles/a-sanction-can-be-the-consequence-of-an-unreasonable-refusal

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Refusing to mediateNic ScampionBack to all Resources
Failure to Mediate: What are the Consequences?

Sheena Sood and Anna Braden of Beale & Co consider the case of Richards & Anor v Speechly Bircham Llp & Anor (Consequential Matters) [2022] EWHC 1512 (Comm) which, although it highlights the importance the Courts put on the parties engaging in mediation, suggests that a failure to engage in mediation is only one of the factors Courts look at when deciding on costs.

https://beale-law.com/article/failure-to-mediate-what-are-the-consequences/

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Refusing to mediateNic ScampionBack to all Resources
Mediation Law During COVID-19

Tony Allen, CEDR, provides a digest of (2020, UK) decisions that relate to mediation and its place in civil justice, including costs sanctions for not mediating, confidentiality of the mediation process, judicial encouragement and facilitation of mediation, and conflicts of interest and mediator appointments.

https://www.cedr.com/mediation-law-during-the-covid-19-pandemic/

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Refusing to mediate, Privilege-confidentiality, Growing mediation, Choosing a mediator, Settlement agreementsNic ScampionBack to all Resources
The High Court disallows a substantial proportion of a successful defendant’s costs on the basis of an unreasonable refusal to mediate

This article looks at a recent (2020) case in which the (UK) High Court disallowed 50% of a successful party's costs as a result of its unreasonable failure to engage in ADR.

https://hsfnotes.com/adr/2020/05/19/the-high-court-disallows-a-substantial-proportion-of-a-successful-defendants-costs-on-the-basis-of-an-unreasonable-refusal-to-mediate/

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Refusing to mediateNic ScampionBack to all Resources
Two recent cases illustrate that belief in a strong case does not justify refusing to engage with ADR.

This article looks at 2 recent (2020) cases in which the (UK) High Court imposed costs sanctions as a result of a party's unreasonable failure to engage in ADR, despite a party's (justifiable) belief in the strength of their case.

https://hsfnotes.com/adr/2020/05/05/two-recent-cases-illustrate-that-belief-in-a-strong-case-does-not-justify-refusing-to-engage-with-adr/

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Refusing to mediateNic ScampionBack to all Resources
Costs sanctions as a result of unreasonable refusal to mediate

This article looks at a recent (2020) case in which the (UK) High Court was willing to penalise a successful party in costs for an unreasonable failure to mediate, and considers the application of sanctions under the Halsey system.

https://mediate.co.uk/case-law/wales-t-a-selective-investment-services-v-cbre-managed-services-ltd-anor-2020-ewhc-1050-comm-30-april-2020/

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Refusing to mediateNic ScampionBack to all Resources
Should the Courts force parties to mediate?

Article notes that (UK) courts already encourage mediation, and may penalise a party which unreasonably refuses to mediate, and suggests recent case - in which a court ordered Early Neutral Evaluation - may indicate increased willingness to order mediation.

https://mediate.co.uk/article/can-and-should-the-courts-force-parties-into-adr/?utm_source=NewZapp&utm_medium=email&utm_campaign=April1newsletter

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Refusing to mediateNic ScampionBack to all Resources
Fully Charged! Recent decisions where the Court has been positive in compelling parties to engage in ADR

Suzanne Wharton and Naomi Park of DAC Beachcroft consider recent cases that indicate that the UK Courts are increasingly prepared to exercise their powers to compel parties to engage in ADR.

https://www.dacbeachcroft.com/en/gb/articles/2020/march/fully-charged-recent-decisions-where-the-court-has-been-positive-in-compelling-parties-to-engage-in-adr/

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Refusing to mediateNic ScampionBack to all Resources