Solicitors Negligence. Refusal to mediate.
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Do you have to engage in mediation to resolve your dispute?
We wrote previously as to the claim Mason & Ors v Mills & Reeve (A Firm) [2012] EWCA Civ 498. An interesting further aspect was the Court of Appeals view on Alternative Dispute Resolution (ADR) and whether or not it was unreasonable of one party to refuse to do so.
The Professional Negligence Pre action Protocol encourages the parties to mediate and exchange information at an early stage to avoid the expense of proceedings.
The case returned to the Court of Appeal when the Defendants appealed the decision to award them only 50% of the costs because they had throughout the litigation refused to mediate and other grounds.
- the fact that there were issues on which the defendant had been unsuccessful (despite being overall the successful party); and
- the parties’ conduct, in particular their approach to alternative dispute resolution (ADR).
The Court were wary about changing the order but did feel that the original Judge was harsh when holding the refusal to mediate against the Claimants.
The guidance on such matters is contained in the case of Halsey v Milton Keynes General NHS Trust [2004] EWCA. The factors to consider as to whether a party had been unreasonable in refusing mediation include (but are not limited to):
- the nature of the dispute as some cases aren’t suitable for ADR;
- the merits of the case as a party who considers their case is very strong and is right may be correct in its refusal but a party who is wrong may not;
- whether other settlement methods have been attempted;
- whether the cost of mediation would have been high, as in a small case the cost of ADR could be disproportionate;
- whether there would have been delay of an impending trial date if ADR was undertaken;
- whether the mediation had a reasonable chance of succeeding;
- the encouragement of the court as this may be illustatrive of an unreasonable refusal to mediate;
The Court of Appeal disagreed that the Defendant had been unreasonable in refusing to mediate, finding that where a party reasonably believed it had a watertight case, that might well be a sufficient justification for a refusal to mediate, and that remained the case even if on some issues the defence did not succeed. The Court of Appeal stated it was a rare case where a party was successful on all issues.
The Court of Appeal didn’t consider the courts below assessment that a mediated settlement was “not unrealistic” correct. The Court of Appeal considered the parties were miles away and there was no prospect of a settlement.
Helpful guidance but be very careful before you refuse as the risks could be great of being penalised as to costs if you do so.
For advice on your Solicitors Negligence claim call Carruthers Law today or fill in one of our enquiry forms.