Alexander Learmonth & Stephen Trahair argue that parties should be able to rely on what a mediator says
Mediation is on the rise. Each successive review of the civil justice system has urged the courts to encourage the use of mediation to resolve disputes, and Sir Rupert Jackson’s Report on Civil Costs was no exception.Parties are already at risk of costs sanctions being applied for an unreasonable failure to mediate, and those proposing changes to the funding of civil claims in the government’s Legal Aid, Sentencing and Punishment of Offenders Bill—and in particular the removal of substantial areas of law from the scope of public funding—seek to justify them on the basis that parties should use mediation as a first resort and litigation last.
Whatever the merits of that suggestion, several aspects of mediation and the mediator’s role remain unclear, and one of the more important was crucial to the recent case of Clay v Lenkiewicz Foundation (Plymouth County Court 9PL05124) in which the authors represented the claimant.
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