Mediation, timing and case management

Often parties will agree to stay proceedings for 2 or 3 months in order for mediation to be explored. This may be at the behest of one of the parties or prompted by a judge who views the case as being suitable for mediation. Now Mr Justice Coulson in CIP Properties (AIPT) Ltd v Galliford Try Intrastructure Ltd & others questions whether applying for a stay is the correct approach – and says it isn’t. The Judge recognises the value of mediation saying,

‘A professional mediator, engaged at the right time in the process and in the right spirit of co-operation by the parties, will often be able to resolve the most intractable case and save everyone a good deal of money, time and effort. The TCC lists in London would be impossible to operate without the good work of mediators and others involved in the ADR process’.

The point that the Judge then considers is how mediation can be accommodated within the litigation process given the tension between facilitating the ADR process and putting the court proceedings on hold in order for ADR to take place. Coulson J comments that the period between disclosure and the exchange of witness statements or between the exchange of witness statements and the production of the experts’ joint statement is usually sufficient time for parties to engage in mediation if that is what they decide to do.

Thus ‘a sensible timetable for trial that allows the parties to take part in ADR along the way is a sensible case management tool’. A stay or fixed ‘window’ for the same purpose however was ‘likely to lead to delay, extra cost and uncertainty and should not ordinarily be ordered’. This was particularly so where a significant party opposes the imposition of a stay.

What are the benefits of the stay? It depends on how proactive the parties or their lawyers are and what the purpose of the stay really is. As Coulson J states, staying the whole proceedings can result in uncertainties and the potential for tactical games-playing. The difficulty is that preparing for trial contains those elements too. Perhaps the progress of litigation may boil down to time and money. While delay can translate into costs, a stay in litigation may carry a psychological pause which could operate jointly as an incentive for the parties to focus on the crucial issues and prepare to mediate.

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About helenc

mediator, barrister, restorative justice facilitator
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