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 second in a series of occasional blogs I am 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.