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Persuade to Mediate

Persuading the other party to mediate and costs orders relating to mediation

The combination of the CPR and recent case law mean that a party that wishes to mediate has significant means to either achieve that objective or put the other party at risk of a significant costs sanction.

A well prepared offer to mediate should be met with either an acceptance or a detailed and reasoned written refusal which is compliant with the case law. If the offer to mediate is unreasonably refused the refusing party may well find that a costs sanction is imposed.

The carrot is better than the stick and it is best practice to persuade the other party to mediate on a voluntary basis in the context of the benefits of mediation. A verbal discussion may be the best starting point.

If the other party is resistant to mediation a written offer to mediate should be prepared.

Such an offer should set out the circumstances which, in light of the CPR and the case law, mean that mediation is an appropriate and proportionate step at the current time.

Reference can be made to the court’s duty under the Overriding Objective in the Civil Procedure Rules to deal with cases justly and at proportionate cost, the court’s obligation of encouraging the parties to use ADR and the court’s power to impose a stay for ADR.

Reference can also be made to the following judicial statements:

“The aim is that, in general, no case should come to trial without the parties having undertaken some form of alternative dispute resolution to settle the case.” (Jackson LJ: Cumulative First Supplement to the 2013 edition of the White Book (Civil Procedure, Sweet & Maxwell), p ix.)

“… an ever-increasing responsibility thrown upon the parties to civil litigation to engage in ADR wherever that offers a reasonable prospect of producing a just settlement at proportionate cost.” ( Briggs LJ: PGF II SA v OMFS Co [2013] EWCA Civ 1288, para 27.)

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