Mediation – Time for Some Changes

It is now over 9 years since Mr. Justice Jack handed down his judgement in Earl of Malmesbury v Strutt & Parker [2008] EWHC 424 QB which addressed, amongst other things, the implications where a party agrees to mediate but then causes the mediation to fail by adopting an unreasonable position in the mediation. That, said the judge, amounted to an unreasonable refusal to mediate so as to engage the principles in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576.

Malmesbury v Strutt & Parker remains a one off because, somewhat surprisingly from certain perspectives, the parties waived their right to privilege in all without prejudice matters including the mediation. In the ordinary course of events, the Court never gets to find out what happened behind the closed doors of mediation. The only issue is whether it has happened at all, and if not why not.

Asking for £9 million in damages when your own claim is put at £5.3 million is well up there in the unreasonableness stakes. But unreasonableness in mediation can arise in a variety of other ways – in the conduct the mediation and not simply in the nature of offers made or rejected. Contentious points scoring position statements, prematurely storming out, grandstanding by parties or their representatives and winding up the other side are all unreasonable features of mediations which can cause them to fail.

Whether you have participated as a party in a mediation or as mediator, there are times when you realise that a party is not serious about the process and is simply ticking the mediation box to avoid any costs implications. All that can be said is that there was a mediation and it did not result in a settlement.

But is it not time for a change to making mediation a process that is without prejudice save as to costs? In that way, in all cases when costs are to be considered by the Court, the Court can examine the conduct of the parties and form a view on how reasonable they were in the conduct of the mediation.

And whilst we are on that subject, is it not also time to bite the bullet and make mediation a compulsory process in all contentious civil litigation? The notion that compulsory mediation infringes Article 6 rights has been much criticised and is regarded by many, including this writer, as wrong. So it was encouraging that in Wright v Michael Wright (Supplies) [2013] EWCA Civ 234, the Court of Appeal suggested that it might be time for a change.

But since then, we are no further advanced. Cost of litigation continues in an upward trajectory and access to judicial in terms of affordability continues to diminish. Time then to make parties try and resolve their differences and to behave reasonably in the process or face scrutiny of the mediation process by the court in due course.