Last Ditch Mediation

Regular readers of this column will know that I have something of a passion for mediation. If I ruled the world every day would be Christmas (only joking – you should see Mr Vinden’s credit card bills this year) and I would compel every party to every civil dispute to try mediation as a pre-cursor to litigation in the Courts. Why? -because I am convinced that mediation serves the parties better than the obscenely expensive alternatives.
I get asked to do a lot of what I call last ditch mediations. By the time I meet the parties, the gross domestic product of a small country will usually have been spent by the lawyers and experts in readiness for the trial, positions will be polarised and the mediation is only going ahead to avoid one of the parties being the subject of cost sanctions because of its refusal to take part in a mediation.
It is for these reasons that last ditch mediations are pretty tough to crack, but don’t worry, I always agree to take them when I can, facilitating, negotiating and on occasion evaluating into the wee small hours until a deal is done before I go home, to spend the following day feeling like a member of the walking dead.
Afterwards, I always reflect on how things could have been different. More often than not I ask the parties and the lawyers for feedback so I can improve my performance in further mediations. Although I rarely hear the suggestion that the parties should have tried mediation at an earlier stage I will let you in to a little secret. In probably 8 out of 10 cases my personal debrief (that’s me talking to myself in the pub) often concludes with the notion that the mediation would have been a lot easier to crack if it had taken place earlier.
It seems at long last that I may not be alone with the idea that mediation should be tried earlier in a dispute rather than leaving it to the last minute.
The Courts have made it very clear in the past that Parties refusing to mediate must have an extremely good reason if they are to avoid cost penalties. See Dunnett v Railtrack, and Halsey v Milton Keynes General NHS Trust and Steel v Joy for guidance on this point. In a case called Nigel Witham Ltd v Robert Smith and Jacqueline Isaacs (No. 2) [2008] the judge made clear that a successful party might also suffer an adverse cost award where the mediation was left to the last minute because of the reduced chances of success that go hand in hand with last ditch mediations.
In applying its judgement on such issues the Court found that “in an exceptional case.. where there was a mediation but very late when its chances of success were very poor and .. if it could be shown that the successful party unreasonably delayed in consenting to the mediation” a successful party could well find itself penalised on costs.
So for those of you that advise parties on dispute resolution, leaving mediation to be tried at the last minute simply in order to get a tick in a box is a risky business. Perhaps we all need to think again?
Peter Vinden

Peter is an experienced professional in the construction industry with particular expertise in quantity surveying and the commercial management of contracting organisations.