“It won’t work”
A search of the internet for “how successful is mediation?” indicates that “mediation has an average success rate of 70-80%” but my daughter tells me that 86.7% of statistics on the internet are made up so further research is required. The authoritative CEDR 10th Annual Mediation Audit, available at Tenth-CEDR-Mediation-Audit-2023.pdf found that 72% of civil mediations settled on the day and a further 20% settled “shortly after”. There is, therefore, a very good chance that mediation will save the parties the cost, stress and emotional turmoil of litigation.
The reality is that mediation does work, often to the surprise of the parties. If the parties are open with the mediator then it is often possible for the mediator to see some common ground which the parties might not have appreciated and, in addition, a mediated settlement can include wider elements that resolve disputes that have not been included in a formal claim and/or would be impossible for a Court to order.
When you go to court and the Judge imposes his or her decision on the parties, it is often the case that neither side is happy with the outcome and one or other side may seek to appeal the decision or frustrate or delay enforcement of any order. A settlement which both parties have contributed to and have invested in is likely to provide a workable solution going forward which allows all parties to move on and to draw a line under the dispute.
A successful mediation will result in a written settlement agreement being drawn up clearly setting out the parties’ respective obligations and responsibilities; it’s a binding contract and if either side fails to hold up their side of the agreement the other party can, if they wish, sue on the mediation agreement. Instead of a lengthy dispute regarding, for instance, the parties’ respective contributions to a house or their respective shares in an Estate, the Court would simply have to determine whether there has been a breach of the agreement and will order the defaulting party to comply with their obligations (and the Courts tend to take a dim view of a party who has reneged on a settlement agreement).
“It’s too expensive!”
Mediation is a heck of a lot cheaper that litigation. It’s not unusual for costs in a fast-track trial (i.e. a straightforward dispute resolved at a one-day hearing), to be in excess of £20,000 for each party and a losing party will usually be expected to pay the winner’s costs, or a reasonable proportion of those costs, so the modest costs of going to a mediation represent a very economical alternative, particularly if the mediation occurs at an early stage before the parties have incurred substantial legal fees.
The Civil Mediation Council Fixed Fee Scheme for claims up to £50,0000 – see Fixed Fee Scheme — Civil Mediation – represents particularly good value.
Costs in intermediate-track or multi-track trials will inevitably be significantly more so the potential savings from and/or return on any investment in mediation would be even greater.
“I don’t want to mediate!”
You don’t actually have much of a choice. The recent case of Churchill v Merthyr Tydfil BC [2023] EWCA Civ 1416 makes it clear that the Court can order parties to engage in Alternative Dispute Resolution (“ADR”), including mediation, overturning the decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 which found that this would amount to an interference in the parties Article 6 right to a fair trial. Mediation is already compulsory in certain family disputes; it is only a matter of time before the same applies to civil claims.
“So what if I don’t go?”
Halsey had made it clear that costs sanctions could apply where a party has refused to engage in mediation depending on the circumstances of the case, i.e. the nature of the dispute, the merits of the case, the extent to which ADR had been attempted and the prospects of and the costs or delay involved in any such ADR.
Subsequent caselaw has also made it clear that a failure to respond to a request to mediate is prima facie unreasonable (PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288 ), and a party deliberately frustrating mediation “by delaying and dragging its feet for no good reason … will merit a costs sanction” (Thakkar v Patel [2017] EWCA Civ 117 at paragraph 31, where the Court of Appeal refused to intervene with what was described as a “severe” costs sanction – the “successful” claimant could only recover 75% of their costs but had to pay all of the defendant’s costs on the counterclaim).
“But if I go to trial I’m bound to win”
The reality is that there’s no such thing as an “open and shut” case! Cases turn on the evidence, including the oral evidence of witnesses who can and do say the most extraordinary and unexpected things when they are giving evidence.
In any event, it has been made clear that a party’s view of the merits of their case cannot justify a refusal to mediate (Hurst v Leeming [2003] EWHC 499 (Ch), considered in Garritt-Critchley v Ronnan and Solarpower PV Ltd [2014] EWHC 1744 (Ch)) and Laporte & Christian v Commissioner of the Police of the Metropolis [2015] EWHC 371 (QB) where a successful defendant was awarded only two-thirds of their costs for a failure to engage in mediation.
It is very unusual for a successful party to recover all of the costs they have actually incurred in litigation once assessment has taken place so the potential loss of a further percentage can make winning a very expensive outcome!tap
“I’ll do it later”
Yes, you can mediate at any stage, but the principles from the cases outlined above are reflected in the “Practice Direction: Pre-Action Conduct and Protocols” which repeatedly emphasise the importance of avoiding litigation if at all possible and the costs and other sanctions which can apply in the event of a failure or refusal to consider mediation at an early stage. Anyway, the sooner you mediate the less you’ll have spent on the dispute.
“I don’t want to see or talk to the other side”
You don’t have to; most mediations involve the mediator shuttling between the parties’ separate rooms (or if you are doing the mediation remotely from their private “breakout rooms”). The mediator isn’t going to require the parties to get together, unless they both want to.
“They will see it as a sign of weakness and use it against me”
Mediation discussions are confidential; anything you say to the mediator and any offers you make are “without prejudice” and cannot be referred to by the other side later if the matter does not settle.
At a time when it takes a year or more for even relatively straightforward disputes to get to Court (and then further time to enforce any order made by the Court), the option of mediating so as to achieve an acceptable solution to a dispute at an early stage, saving time, money, stress and sleepless nights is increasingly attractive, especially when there are approachable, friendly, efficient and economical mediators available via Becket Mediation.
If you have any questions about civil mediation please contact the clerks at clerks@becket-chambers.co.uk or on 01227 786331.
