Who pays the mediator?

The costs budget Precedent H requires details of ADR/settlement discussions. Can such costs (including unsuccessful mediation costs) be recovered as part of standard costs ordered against the unsuccessful party?

Profit costs relating to settlement negotiations between solicitors should be recoverable subject to the tests of reasonableness and proportionality. The question of the cost of mediation and other forms of ADR is much more difficult and there are differing views among costs commentators. Unless the parties are agreed that ADR costs shall be costs of the case or an order to this effect can be obtained from the court, there is a real risk that they would not be recoverable on the standard basis. The position might be different on the indemnity basis but even then some doubt remains.