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REFUSE TO MEDIATE, PREPARE TO PAY!

REFUSE TO MEDIATE, PREPARE TO PAY!

Mediation is a voluntary method of exploring settlement of a disputes. The English Civil Procedure Rules (CPR) encourages the disputing parties to consider all methods of settlement before commencing litigation. So what happens if one party steadfastly refuses all offers and attempts of mediation or other forms of alternative dispute resolution (ADR)

CPR 44.2 give a court complete discretion on the matter of costs at any stage of the litigation process having regard to all the circumstances including the conduct of the parties. A High Court case this involving the Mirror Group Newspapers (MGN) resulting from illegal telephone interceptions or “telephone hacking” by MGN employees shows that an outright refusal to even consider mediation could be regarded as unreasonable conduct exposing the refusing party to a costs sanction.

MGN was approached three time by the claimant regarding possible mediation or ADR of costs payable. It did not respond to any of the requests, a situation the trial judge found as “blanket refusal to engage in any form of discussion of ADR”. Its argument that mediation/ADR would not have succeeded found little favour with the judge who said that “I have no hesitation in concluding that the MGN acted unreasonably to a high degree such as to justify a costs order against it on an indemnity basis……..” The judge found there was no justification for its belief that any mediation/ADR would not have been beneficial to both parties.

The judge followed an earlier Superior Court decision endorsing the concept that “silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether outright refusal might have been justified by identification of reasonable grounds” by the refusing party. The moral of this being that an independent third party such as a mediator will very likely see issues, or at least have an opportunity to review the matter, in a way that the disputing parties with their entrenched positions do not see.

M RIAZ

LLB degree, LLM Masters in Law, Solicitor Supreme Court, England & Wales. Practice with major law firms in England, Dubai (UAE) and Qatar. Lecturer in Law

 

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