So says HHJ Pelling QC in Orientfield Holdings Ltd v Bird & Bird LLP  EWHC 1963 (Ch). When and on what basis an approach is made by one party to another to mediate is a judgment call.
In this particular case there was an issue whether the failure to mediate may constitute a breach of the duty to mitigate. The Judge commented that the case had settled with ‘relative ease’ but correspondence prior to trial had not suggested that would be likely. The Judge considered the factors which influenced the parties’ decision concerning mediation at various stages of the litigation. The parties had agreed that prior to the exchange of witness statements it would be ‘inappropriate’ to mediate. The Judge did not attempt to go behind this assessment.
The Judge examined the correspondence between the parties after witness statements had been exchanged. It included, among other things, different suggestions as to the composition of participants at the mediation for example the Judge considered a tripartite mediation with indemnity insurers from two firms of solicitors attending would ‘enhance dramatically the prospect of settlement’. Apart from whom would attend the mediation, other factors affecting the decision whether to mediate were the relative strength of the legal case – and this case involved the legal interpretation of a contractual clause – and the proximity to trial.
It is not surprising that the Judge found the fact that solicitors considered their clients’ case to be a strong one was ‘not a good reason for refusing to mediate’. This concurs with previously expressed judicial opinion that a skilled mediator can enable parties to reach agreement even where the prospects initially look limited. On the facts of this case and because it was not only the strength of their clients’ case which formed the basis for not mediating, the Judge held that the failure to mediate was not a breach of the duty to mitigate.
It follows from this case that the Courts will continue to pay close attention to the timing and the reasons for any failure to mediate. Careful judgement must be exercised by parties suggesting mediation as well as those responding to the invitation.