Litigation Tactics - Mediation
  • 13th Jan 2015
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Attending a mediation during the course of litigation is in almost all cases voluntary. 

That is the theory at least.  However, it is increasingly the case that mediation in the vast majority of cases is, for all intents and purposes, compulsory because of the adverse costs consequences of refusing to do so.  The recent case of Garritt-Critchley v Ronnan has cemented the position in this respect and shows how a party can use mediation as a tactical tool. 

The Claimant in that case had submitted a letter before action prior to starting Court proceedings, which invited the Defendant to mediate.  The Defendant declined to do so at that stage.

When proceedings got under way, the Defendant stated in a questionnaire submitted to the Court that they were not prepared to engage in settlement activity as “the parties are too far apart at this stage”.  Further correspondence ensued between the parties about mediation, with the Claimant continuing to express its desire to mediate and the Defendant declining to do so, expressing great confidence in its Defence.  At one stage, a district judge asked the parties to explain any refusal to attend a mediation.

At the end of the case, the issue of the parties’ costs of the proceedings came before the Court.  The trial Judge made a number of observations.  He said that the sort of case which might rule out mediation would generally be a case of importance where a party wished to resolve a particular point of law or establish a precedent.  However, this particular case had been clearly suitable for mediation and was in no way unusual. 

He further stated that a situation where there was dislike and mistrust between the parties was exactly the sort of case where a mediator’s skills are most useful.  Furthermore, the parties do not know if they are too far apart unless they explore settlement.  A punitive costs order resulted for the Defendant.

What lessons can be learned from this? I would suggest the following:

  • Litigation should always be considered a matter of last resort.  Embrace the concept of mediation: statistically it is very successful in resulting in a settlement.
  • Invite your opponent to mediate at a very early stage, and preferably before proceedings start.
  • If you receive an invitation to mediate from your opponent, think very carefully before refusing to do so.  In some cases, there may be good reason to delay mediating, such as important evidence which is awaited.  However, this should be explained.
  • The Judge is right: unless the parties otherwise settle their dispute, they will not know how far apart they are until they test each other’s respective positions at a mediation.

If you wish to discuss any of the points raised in this article please contact Christopher Longden who is a member of our Dispute Resolution team and an accredited mediator.