Part two: Erich Suter on the move towards enforced mediation
Increasingly courts are coming to accept that they do have the power to enforce agreements to mediate and it seems that nowadays it is likely that that power will be exercised provided the agreement is sufficiently clear. The only exceptions to this are in those cases where mediation is inappropriate. These are generally cases:
which require a ruling on points of law;
where the refusing party believes the applicant to have been guilty of bad faith or sharp practice;
where injunctive relief or other such remedy is sought;
where the costs of mediation would be disproportionately high; or
where there has been unreasonable delay in seeking mediation.
Undoubtedly even in some of these cases mediation will be ordered and in other cases, not covered by these generally “inappropriate” areas, mediation may nonetheless be seen as inappropriate or utterly futile in that particular case.
The merits of the case
A party’s reasonable belief that he has a watertight case may make his refusal to undergo “CPR mediation” reasonable.
