If you get into a legal dispute with someone and go for advice you’ll find that, in most cases, there’s a legal duty for your solicitor to tell you about mediation as a way of sorting things out, rather than going to court.
They’ll give you information about mediation generally, tell you the benefits compared to court action, make it clear that mediation is not compulsory and tell you when it isn’t appropriate.
If they haven’t done this it can lead to delays if you then try to formally start a court action. More worryingly, unreasonably refusing to take part in mediation can count against you when the court decides, at the end of hearing your case, whether you have to contribute towards the other side’s legal costs.
In other countries with similar rules the courts have even made costs orders against people who agreed to take part in mediation but did so unenthusiastically, inflexibly and slowly, constantly raising problems and difficulties, so that the other side gave up on it.
It’s not always clear what will amount to unreasonable refusal. It’s possible that refusing mediation because you think your case is so strong you’re bound to win could be acting unreasonably because, if it’s really that strong you should apply for summary judgment – a quick decision by the court based on an initial consideration of the parties’ positions. Refusing because you really dislike or mistrust the other side, or you think you are just too far apart, might also be unreasonable because those are the circumstances in which a mediator’s skills are most useful.
Some of the benefits of mediation are that it is confidential (the public aren’t allowed in, and there’s no published case reports); the mediator manages the process and can highlight the consequences of failure to agree a settlement; the parties can agree non-legal terms as well as legal ones (for example, how the parties could continue to work together in future); it can be quick and inexpensive compared to going to court, but you can use the courts to enforce any mediation agreement you reach; and it is less formal and therefore often less stressful. It doesn’t stop you going to court if you don’t reach an agreement.
The new rules don’t apply to all disputes – for example, they don’t cover employment law disputes, domestic violence or child care proceedings – but do cover the vast majority, including personal injury and commercial disputes generally.
If you do get into a legal dispute, remember that you will be expected to consider mediation under the new rules and you need to prepare for it – or think of good reasons why you needn’t bother with it, and the possible costs consequences if you get it wrong.
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.