Mediation: A glimpse at the judicial perspective

With year-ends approaching and an eye on the bottom line, relationship clients may respond favourably when they see that you are also taking stock of their outstanding disputes in case a litigation can be taken off the books, or an accounting provision can be substantially reduced.

In the wake of the Jackson reforms and the economic climate, judges are making sure that parties get used to the idea that costs need to be kept proportionate to the dispute. Cost capping is clearly here to stay and judges are also increasingly imposing cost sanctions against parties who unreasonably refuse to mediate. The Court of Appeal pushed that boundary further last November, stating that silence in the face of an invitation to participate in ADR is, of itself, unreasonable conduct likely to justify a cost sanction, regardless of whether an outright refusal may have been justifiable.[1] A party can still decline an invitation or suggest that it would be better to mediate at some later time but you need to explain why in writing, preferably based on ‘Halsey’ guidelines, and if you believe a lack of information to be the obstacle, give some consideration as to how that could best be overcome.

Last week, speaking at a dispute resolution seminar organised by the Intellectual Property Office, I got a sense of how positively the judiciary now regards mediation. Our keynote speaker, Mr Justice Arnold spoke enthusiastically about mediation and ADR and concluded by telling the audience

“It works, so go and do it”.

Dismissing the notion that offering to mediate might still be interpreted as a sign of weakness, he suggested that sending someone a double-edged message that you are confident of your legal position and also open to finding a commercial solution is now more likely to be seen as an indication of tactical strength.

If nothing else, it should concentrate the other party’s attention, rather like Arafat’s ‘Don’t let me drop either’ speech at the UN, with olive branch in one hand and machine-gun in the other.

This is the first in a series of occasional blogs I will be writing about dispute resolution. Please let me know what you think, or if you would like me to cover any specific topics.

[1] PGF II SA v OMFS Company 1 Ltd [2013] [2013] EWCA Civ 1288, per Lord Justice Briggs.


How mediation can help law firms

Deciding when and whether to mediate a client’s case can be a delicate balance. There are times though – and I don’t just mean those occasions where you feel that litigation may not be the best option – when mediation can complement your practice.

For example, when a relationship client is more likely to thank you for avoiding litigation, or where the amounts involved are relatively small and litigating isn’t likely to be a cost-effective option. In those sort of cases, clients will appreciate you delivering a quick, commercial result – just as they will if conventional legal remedies could take too long or don’t offer what they want.

Mediation can also make sense where emotions are involved and the most effective way of sorting out a dispute entails getting to the heart of the problem. Maybe the parties don’t want what, to you, looks like an obvious solution, or despite your concerns about a case, your client wants their ‘day in court’.

Sometimes, part of the problem is that the other side simply won’t listen. Either because they are convinced they are right, or because they don’t understand what solutions are, or aren’t, possible, particularly if they aren’t familiar with your client’s business. If a quiet word with their lawyers doesn’t do the trick, it could be time to introduce someone independent to give them a private dose of reality.

Mediation can also be the answer when a client’s dispute involves overseas parties, especially if the alternative involves suing or enforcing abroad.