“How dare you suggest mediation?? Why should I? Don’t you know the other side is blatantly in the wrong?” This is what parties in dispute sometimes say. The hike in court fees hasn’t necessarily made mediation more appealing. The Court is however continuing to communicate its disapproval of a party’s conduct where it ignores or refuses a request to mediate. Master Simons made the Court’s approach clear in Bristow v The Princess Alexander Hospital NHS Trust  EWHC 822 (Costs).
Master Simons determined that parties should be encouraged to enter into mediation and if one party fails to enter into a mediation and that failure is unreasonable then there ought to be a sanction. The Master found that the reasonable request to mediate made by the claimant, rejected 3 months later by the defendant was done so unreasonably. The defendant’s reason was that the case had already been set down for a detailed assessment which did not amount to a reasonable rejection of mediation in the Court’s view. The Court ruled the sanction to be borne by the defendant was to pay the claimant’s costs [80% of the costs claimed] on an indemnity basis, “as a sanction for the defendant failing to engage in mediation”.
A week earlier in the case of Reid v Buckinghamshire Healthcare NHS Trust, Master O’Hare had considered a similar situation. The costs dispute had been listed for a two day detailed assessment hearing. Agreement was reached by the start of the second day however, which left the Court to decide on whether to allow the claimant the costs of the assessment – a resounding yes.
“If the party unwilling to mediate is the losing party, the normal sanction is an order to pay the winner’s costs on the indemnity basis, and that means that they will have to pay their opponent’s costs even if those costs are not proportionate to what was at stake. This penalty is imposed because a court wants to show its disapproval of their conduct. I do disapprove of this defendant’s conduct but only as from the date they are likely to have received the July offer to mediate”.
Although Master O’Hare sounded a note of caution in imposing cost sanctions against losing parties, the message is clear: dare to unreasonably refuse to mediate only if you’re prepared to pay the price.