Frequently Asked Questions
If the court won’t make me mediate, is it worth it?
Courts cannot force a party to mediate, not only would it go against the point of mediation, but it would take away a person’s right to have their dispute heard in court. However, the courts have significant powers to penalise parties who refuse to mediate without reasonable excuse. This includes adverse costs orders where even a winning party will have their recoverable costs reduced if they did not mediate without a good
- Cheaper than litigation
- Quicker than litigation
- Avoids adverse costs
- More flexible options for resolution
- Parties retain control
What is a reasonable excuse?
What constitutes a reasonable excuse in not mediating is not clearly defined. However, the court will consider, amongst other things the nature of the dispute, whether the costs of ADR would be disproportionately high, and whether any delay in setting up and attending ADR would have been prejudicial to the party. This applies to all methods of ADR rather than just mediation. As mediation is quick to set up and attend and is not expensive (some other forms of ADR are as expensive as court) it is unlikely that a party could argue delay or expense as being a justifiable reason to refuse to attempt mediation.
- Not defined
- Number of factors taken into account
- Mediation does not have a disproportionate cost
- Mediation does not involve long delay
- Parties who refuse to mediate must be prepared to have a good justification for doing so if they wish to avoid adverse cost orders.
If mediation does not result in a settlement have I wasted my time?
Mediation has a high probability of success, however, a mediation that does not result in a settlement is seldom wasted. By going through the process, removing the emotion and firming up what a party actually wishes to achieve then at the very least the issues in the case are significantly narrowed to ensure litigation is more focussed and therefore less expensive. Should the matter proceed to court then parties can apply for the fee for mediation to be taken into account by the judge when he or she is considering costs.
What if no Settlement?
- Rarely wasted
- Narrows issues for trial
- Saves court time by focussing the litigation
- Fee may be recovered by winning party in costs at completion of litigation
Do I need my lawyer to attend?
Sometimes parties wish to have their lawyers present in the mediation, this is entirely acceptable, though will incur the costs of the lawyer’s time (in most cases it would cost the parties more for their lawyers to be present than the mediation itself). Therefore it is always a choice for the parties to make. If lawyers are not present at the mediation it is a sensible approach to ask them to write up the settlement agreement on completion.
Should I bring my Lawyer?
- Lawyers are not required at a mediation (cost saving)
- They are welcome to attend if the parties wish to do so
- Lawyer should draft settlement agreement