CIVIL LITIGATION

(i) When a joint experts’ statement is ordered under CPR 35.12(3), the experts are obliged to produce it and are in breach of their duty to the court if they do not. Such a statement is for use in the proceedings, and so is not protected by privilege. However, it is not an admission by the parties, nor can it be characterised as an admission by the experts, and so the parties are not bound by it.
(ii) The court cannot order the parties to mediate. However:

“The court can and does order a stay of proceedings for mediation, almost always when all parties have indicated that they are willing to try. The court may also perhaps, on occasions, consider making an adverse costs order against a party who is shown to have unreasonably refused to participate in mediation, although I personally regard that as a power to be exercised with caution.

Since the court cannot order the parties to participate in mediation, neither can the court make orders stipulating the details of how the parties should conduct a mediation. The most the court can do is to encourage” (per Lord Justice May at para 6).