Ignore Mediation and Face the Consequences!

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Here at andrews ritson solicitors, we certainly know and understand the benefits of mediation. It may not work in all disputes but we have seen surprising results in a wide range of Court cases where the engagement of a skilled mediator can break down the barriers to achieving a resolution to a dispute, often saving thousands of pounds in legal fees and potential damages and costs. From the other side, it can also ensure a quick recovery of money rather than having to go through the Courts and waiting over a year for a judge to make a decision.

Used tactically, a request to mediate can also put pressure on the other side to come to the table. In a couple of cases this year, this principle has been reinforced by the Courts. The normal rule which allows a party who has won their case to recover their costs from the losing party can be interfered with where a judge decides that there is an unreasonable refusal to engage in what is known as Alternative Dispute Resolution (ADR), and this term often means mediation.

Of real interest to those who have the potential to be involved in the local Courts, a judge sitting in Birmingham dealing with a commercial dispute made an interesting ruling. In this case, the claimant obtained a judgement but was only awarded nominal damages of £1.00. In these circumstances, one would normally expect the defendant as the losing party in a case where only nominal damages were awarded to secure a cost order in its favour against the claimant. Notwithstanding that, the judge reduced the costs which the defendant could recover by 40% because of its unreasonable refusal to take part in mediation. Comments made by the judge are worthwhile bearing in mind. The judge indicated that in the circumstances of this case there ought to be a sanction applied to the defendant, which should be proportionate, and linked to the degree to which the court can realistically assess that there was actually an opportunity to save costs if mediation had taken place.

Commentators point out that the message is very clear. If you can demonstrate that an opposing party has unreasonably refused to engage in mediation, and that as a result, “opportunity to save costs” has been lost, then a judge may well feel it is appropriate to make a significant reduction to the ability of that successful party to recover their costs in the usual way.

We are experienced in dealing with mediation both as representatives of parties bringing claims and defending claims. Rob Andrews has been appointed as a mediator himself in commercial disputes and is available for appointments and/or advice on the benefits of using mediation and other ADR processes. Indeed, he was one of the first solicitors in Shropshire to become a member of the Chartered Institute of Arbitrators following his work in the Construction and Engineering Sectors. Our commitment to the use of mediation continues with our newest recruit, Olivia Appleby, undergoing mediation training at the outset of her career. Indeed, upon qualification, she is likely to be recognised as the youngest qualified mediator in the region.

If you have a dispute and wish to avoid the costs and time (and the use of your management time) in resolving that dispute, then let us advise you on how mediation can help.

Please contact Rob Andrews in the first instance.

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