Mediation provides a process that the parties themselves control and which is entirely confidential.

 

If you are concerned about the publicity of a court claim then mediation offers a route to resolve your dispute 'behind closed doors'.

 

The process is relatively quick and it enjoys a high success rate.  Over 80% of mediations either settle on the day or shortly afterwards.

 

A further consideration is costs.  There have been three significant court decisions in which the judiciary have impressed on parties embroiled in litigation that to ignore requests to mediate or to unreasonably refuse to mediate can and will be penalised in costs, even if it is the successful party at fault.

 

In October 2013, the Court of Appeal in PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288 confirmed that 'silence in the face of an invitation to participate in ADR was itself unreasonable, regardless of whether a refusal to engage in ADR might have been justified'.   As a result, a party's silence in the face of two requests to mediate was itself unreasonable conduct sufficient to warrant a costs sanction.

 

In February 2014, the High Court in Garritt-Critchley v Ronnan [2014] EWHC 1774 (Ch) found that overconfidence by a party in the strength of its position was not a reasonable explanation for a failure to engage in mediation.  In his judgement, HHJ Waksman QC quoted Mr Justice Lightman in the case of Hurst v Leeming:

 

“The fact that a party believes that he has a watertight case again is no justification for refusing mediation. That is the frame of mind of so many litigants.”

 

HHJ Waksman endorsed that observation.

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In Thakkar v Patel [2017] EWCA Civ 117, the Claimant proactively sought mediation for over a year.  Faced with the Defendant's prevarication and delay in agreeing mediation, the Claimant abandoned the process.  The Court of Appeal upheld the original trial judge's order that the Defendant had to pay 75% of the Claimant's costs even though the Claimant had failed to beat the Defendant's offer.  

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Lord Justice Jackson stated at [31]:

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"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."