The Court can impose penalties on parties which refuse to mediate, particular if they don’t articulate a good reason for their refusal. Silence in response to a request to mediate was held to be unreasonable and led to a cost penalty – PGFiiSA v OMFS Company (2013). Two recent cases also illustrate the Court’s approach.
In Simon Kelly v Raymond Kelly (2020) the parties had twice attempted to resolve their dispute through mediation. The Defendant refused to mediate a third time and explained why: the Claimant’s failure to honour two previous mediated agreements and to make written offers when invited to do so, bad feeling between the parties and other grounds. The Court held that the Defendant’s conduct was not unreasonable, given the Claimant’s broken promises, and the Defendant was awarded costs on the basis claimed. By way of contrast, in DSN v Blackpool Football Club (2020) the Defendant had simply advised the Claimant that it would not mediate because it maintained its defence and denied liability! Costs were awarded on the indemnity basis.
So the Courts will clearly encourage mediation and will penalise a party which unreasonably refuses to mediate.
If you are the disputant offer mediation to the offending party.
If you are the defendant always consider the offer of mediation.