Case law: Court finds reasons for refusing to mediate were all unreasonable
Parties to disputes should think carefully before refusing to take part in mediation. In a recent case, a party to legal proceedings put forward multiple reasons for refusing mediation, but the court rejected all of them as unreasonable.
This update was published in Legal Alert – September 2014
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Throughout various proceedings, offers and counter-offers the claimant continued to press for mediation and the other side continued to refuse it.
Eventually, the claim was settled on the basis of an early offer made by the claimant, which the other side had initially refused. The claimant argued that the other side should pay its legal costs on an indemnity basis because they had refused to engage in mediation. Awarding indemnity costs means that if there is any doubt whether a claimant's costs are reasonable or reasonably incurred, the court gives the benefit of the doubt to the claimant.
The court said mediation was suitable for this sort of dispute and extreme confidence is not a good reason to refuse mediation: a party claiming its case is so strong that there was no conceivable point in trying mediation will usually be acting unreasonably. If a party is so confident of its position it should apply for summary judgment.
The court also found that the other side was wrong in claiming there was too much dislike and mistrust between the parties for mediation to be worthwhile - a mediator's skills were most useful in situations of distrust and emotion.
Finally, it also found the argument that the parties were too far apart was not a good reason to refuse mediation – it's only through mediation that they know whether they are too far apart or not. The court ordered the other side to pay the claimant's costs on an indemnity basis up to the date it accepted the offer to settle.
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