Comments about Mediation

Mediation

Comments about Mediation

Introduction

Public discussion about mediation, including personal experiences are important to Collis Mediation Ltd and its partners. Discussion provides information; and highlights the benefits to visitors of our site.

Collis Mediation Ltd actively takes part in the promotion of mediation as an alternative to more formal routes for conflict resolution.

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Ghaith –v- Indesit [2012] EWCA Civ 642. The Court of Appeal:-

26. "It is a great pity that Indesit did not pursue the option of mediation rightly encouraged by Toulson LJ when he gave permission to appeal. Mr Peebles informed us that it was not pursued because the costs had already exceeded the likely amount in issue. This is an inadequate response to this Court’s encouragement of mediation since a full day in this Court will inevitably result in a substantial increase in costs. Indesit’s reaction is all too frequent and the Court has, since April of this year, decided that any claim for less than £100,000 will be the subject of compulsory mediation. It is devoutly to be hoped that such mediation will mean that these comparatively small claims will not have to be adjudicated by this Court so frequently in future."

Lord Justice Ward:

29. I fully endorse Longmore LJ’s postscript. When this Court grants permission to appeal, it does so because there is a real prospect of success. That does not mean that the appeal will succeed, but it does mean that the appeal is by no means hopeless. That should tell both parties that there is still all to play for. If they have any sense, they will therefore heed a recommendation to mediate because the costs of mediation are likely to be exceeded by the costs of the appeal by a significant margin. It is not enough, as Mr Peebles suggested, that there had been some attempt in the correspondence between solicitors to settle the case. The opening bids in a mediation are likely to remain as belligerently far apart as they were in correspondence but no-one should underestimate the new dynamic that an experienced mediator brings to the round table. He has a canny knack of transforming the intractable into the possible.

That is the art of good mediation and that is why mediation should not be spurned when it is offered.”

In PGF II SA v OMFS Co 1 Ltd [2014] 1 W.L.R. 1386, the Court of Appeal:-

“The ADR Handbook , first published in 2013, after the period relevant to these proceedings, sets out at length in para 11.56 the steps which a party faced with a request to engage in ADR, but which believes that it has reasonable grounds for refusing to participate at that stage, should consider in order to avoid a costs sanction. The advice includes:

(a) not ignoring an offer to engage in ADR;

(b) responding promptly in writing, giving clear and full reasons why ADR is not appropriate at the stage, based if possible on the Halsey guidelines;

(c) raising with the opposing party any shortage of information or evidence believed to be an obstacle to successful ADR, together with consideration of how that shortage might be overcome;

(d) not closing off ADR of any kind, and for all time, in case some other method than that proposed, or ADR at some later date, might prove to be worth pursuing. That advice may fairly be summarised as calling for constructive engagement in ADR rather than flat rejection, or silence.”

And at para 34:

“In my judgment, the time has now come for this court firmly to endorse the advice given in para 11.56 of the ADR Handbook , that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified by the identification of reasonable grounds.

In Thakkar -v- Patel [2017] EWCA Civ 117 Lord Justice Jackson issued a warning:-

“The message which this court sent out in PGF II was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction. In the present case, the costs sanction was severe, but not so severe that this court should intervene.”

In paragraph 22-24 of Bradley V Heslin [2014] EWHC 3267 (Ch), Mr Justice Norrise echoes the words of Sir Alan Ward in Oliver v Symons (2012) EWCA Civ 267:-

"This entrenchment of positions is a regrettable characteristic of neighbour disputes. I add my voice to that of many other judges who urge that, even when proceedings have been issued to preserve the position, the engagement of a trained mediator is more likely to lead to an outcome satisfactory to both parties (in terms of speed, cost, resolution and future relationships) than the pursuit of litigation to trial. In Oliver v Symons [2012] EWCA Civ 267 (a disputed easement case) Ward LJ said at [53]:-

"I wish particularly to associate myself with Elias LJ's pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come."

"I think it is no longer enough to leave parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken."

Lord Neuberger of Abbotsbury, President of the Supreme Court, UK:-

"Mediation is better able to achieve a just or fair outcome for the parties, provided that both have the will to settle their differences.

Fairer not because the outcome necessarily reflects the substantive legal merits of the underlying dispute but rather because the parties have both participated in a consensual process and reached a mutually agreeable resolution."

Lord Justice Jackson, a highly experienced member of the Court of Appeal, was asked by the Government to come up with recommendations to reform the way litigation is funded and how costs could be controlled:-

Lord Justice Jackson noted mediation has a ".....significantly greater role to play in the civil justice system than is currently recognized",

This was summarized in his belief that ".....mediation has a vital role to play in reducing the costs of civil disputes. It is underused and its potential benefits are not as widely known as they should be".

In relation to Consumer Rights and new proposals to create an Alternative Dispute Resolution Scheme for consumers, Consumer minister Jenny Willott said:-

‘Consumers need to be confident that when a purchase goes wrong, the problem will be resolved quickly and easily without having to take it to court. Alternative dispute resolution is a faster, cheaper and more straightforward means of putting it right.

UK Government's response to its consultation, 'Resolving Workplace Disputes', it made clear its intention:-

"...to embark on a long-term reform programme to build a new approach to resolving workplace disputes so that the use of mediation to resolve disputes becomes a more accepted and trusted part of the process" (BIS 2011).