Forcing unwilling parties to mediate is fruitless, says Stephen Cantle
Recently, I was involved in a mediation where the only benefit was to add to the costs. During the course of a frustrating day, it became clear that our opponents were not prepared to compromise and would only settle at maximum value. Although this was not a novel experience, the case drove me to think about the usefulness of the warnings from the courts about the consequences of refusing to submit to the mediatory process.
Why do people agree to mediate if they have no intention of reaching a compromise? The short answer is because, these days, we all know that a refusal to mediate may well result in a party being penalised in costs, even if it is subsequently successful at trial.
There have been many instances where judges have emphasised this point. Perhaps the most well-known example is the Court of Appeal decision in Dunnett v Railtrack plc [2002] 2 All ER 850.
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