Mediation – can you afford not to?

Mediation for civil disputes isn’t free unless one of the party’s has no means to pay and can access the free mediation service at LawWorks. Additionally there’s a court service which is accessible once a small claim is issued and both parties are willing to mediate.

For other disputes, is it worth paying for mediation? Usually people are prepared to pay for things when they know what they’re going to get. What makes mediation any different from a trial when at the beginning of both, the outcome is uncertain? Before a trial there are factors which can feel safe, more certain and offer a degree of predictability which persuades people to stick with a process that they know. This sense of safety is sometimes built on a combination of having lived with a dispute for a while, professional advice and a personal belief in being ‘right’. Before a mediation it can feel like there’s less certainty. This is in spite of the fact no-one can guarantee the outcome of a trial. Mediation undoubtedly feels uncertain if it’s the party’s first time and they don’t know how it works, what to expect or who is in control of the outcome.  These are questions which have answers and depending on who gives them, a party can be reassured, encouraged and embark on mediation with confidence that it can lead to a legally binding settlement.

Unreasonably refusing to mediate carries a risk in recovering costs after trial. A non-exhaustive list in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 sets out what the court may count as an unreasonable refusal to mediate. A recent survey by North West Mediation Solutions revealed that 70% of the 1800 lawyers and accountants who took part agreed that the Jackson reforms introduced on 1st April 2013 will lead to a greater use of mediation. If this is borne out, offers to mediate are likely to be more frequent and parties will need to consider how to respond with some care. The cost of a trial may or may not mirror the costs budgets. The timing of the offer to mediate could be significant, too early or too late. Can the party be sure that the court will see its refusal to mediate as reasonable? If the offer to mediate is accepted it could operate to cap litigation costs, resolve the dispute and finally allow certainty.

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About helenc

mediator, barrister, restorative justice facilitator
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