Offer to Mediate should not be unreasonably refused.
Mediation is an extremely flexible, confidential and successful form of alternative dispute resolution. Litigants should consider mediation during the life of a case.
Under the civil procedure rules, courts have a wide discretion on the award of costs for or against a party involved in litigation. The court will take into account the conduct of all the parties in trying to resolve the litigation; including any unreasonable refusals to mediate.
In the recent case of Rolf v De Guerin  EWCA Civ 78, the Court of Appeal made no order as to costs in a case where a party had effectively refused to mediate. The Judge, Lord Justice Rix, said that it was “a sad case about lost opportunities for mediation. It demonstrates, in a particular class of dispute, how wasteful and destructive litigation can be". The Judge also commented that trial should be the last resort of litigating parties.
Litigation Solicitor Stephen McArdle comments: “this case highlights again the importance of litigating parties to properly consider the settlement of disputes and claims where it is reasonable to do so; including mediation. The courts can make adverse costs orders where a party unreasonably refuses to mediate, even if that party has won at trial”.
KBL has an experienced dispute resolution team who can assist with mediation. For more information, please contact Stephen McArdle.