When should I mediate?
The answer to this question depends on the circumstances of your case and the attitude of the opposing party that you are in a dispute with. A mediation is a form of Alternative Dispute Resolution where disputing parties meet with an impartial jointly instructed mediator, who will attempt to facilitate discussions to narrow the issues in dispute and strive towards a settlement.
All legal representatives should advise their client about the importance of exploring Alternative Dispute Resolution throughout a dispute, however, an appropriate time can often be dictated by court-imposed deadlines, document discovery and access to money.
On the whole, mediation is championed and encouraged by the courts of England and Wales. In fact, the Practice Direction for Pre-Action conduct which forms part of the Civil Procedure Rules sets out specifically that ‘litigation should be a last resort’ and that ‘Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started’.
Please therefore take care when declining to attend a mediation. If the opposing party to your dispute invites you to attend a mediation, you must think incredibly carefully before declining. A party’s silence or a refusal to attend (without a good reason) a mediation could have significant cost consequences at the end of a case and criticism of your conduct. If you are already a party to a litigation claim in the courts of England and Wales, you will often be asked to submit a witness statement within 21 days of your refusing such an offer with an explanation as to your reasoning.
It is possible that your case is simply not suitable for a mediation due to urgency, the need for court determination of an issue or emotional considerations. However, mediation does not always have to lead to a final settlement to be successful. It is possible for a mediation to take place at the outset of a dispute to assist the parties in defining their dispute and narrowing issues to save costs and the court’s time.