The push for parties to resolve their disputes outside of the formal Court process continues to gain momentum.
The Courts increasingly encourage parties towards mediation at every opportunity. Indeed, it is now becoming the practice in some of the higher Courts to require a party who refuses to mediate to file a statement setting out it’s reasons which may subsequently be taken into account when deciding what orders should be made regarding costs at the end of the case, even if that party is successful.
Even after the main battle has concluded, mediation may have a role to play in the assessment of the costs that are recovered. Recent cases in the Supreme Court Costs Office have penalised parties who have refused to mediate over the amount of costs!
At Colman Coyle, we are certainly seeing a significant uptake in mediation. At the time of writing this article (early January 2016) we already have 5 actual or potential mediations planned for the month of January covering a variety of disputes.
Perhaps, even more telling, is that in seeking to arrange a venue for mediation, two of the three external providers whom we would normally use had no availability in January and a third, the International Dispute Resolution Centre, which is a substantial and leading venue, was only just able to accommodate one of our mediations fixed towards the end of the month.
Also more popular mediators are becoming increasingly difficult to appoint particularly if the parties have a specific date in mind.
It will be interesting to see whether the increased update in mediation is fuelled by a genuine desire of the parties to resolve matters or, whether in fact, in many cases there is less desire to settle but a fear of the consequences of refusing to participate.
Either way, it seems likely that mediation is only going to increase and a proper understanding of and familiarity with mediation is an invaluable tool in the armoury of any lawyer involved in the Dispute Resolution Process.
