Mock mediationDe-mystifying the process

Introduction

Jonathan TardifPartner, Browne Jacobson LLP

Mediation

Chloe PoskittAssociate, Browne Jacobson LLP

What is mediation?

Mediation• “A flexible, [sometimes] voluntary and

confidential form of alternative dispute resolution, in which a neutral person assists parties to work towards a negotiated settlement of their dispute, with the parties retaining control of the decision whether or not to settle and on what terms”

Benefits of mediation• Private• Confidential• Voluntary• Flexible• Quick• Relationship preserving• Reduction in legal costs

The starting point• Litigation should be a last resort• Parties are expected to consider Alternative

Dispute Resolution (“ADR”)– The Pre-action Protocols and Practice Direction

requires parties: to consider and attempt ADR Provide evidence (if required) to show that ADR

was considered• Refusing to mediate could be costly

The Halsey principles • Nature of the dispute• Merits of the case• Whether other settlement methods have been

attempted• Whether the costs of ADR would be

disproportionately high• Delay• Prospects of success• Other factors

PGF II SA v OMFS Co 1 Ltd [2013]• Held:

– At first instance: It was unreasonable for D not to (a) respond to

C’s suggested mediation attempts and (b) not to agree to mediate.

– At the Court of Appeal: It is a general rule that silence in the face of an

invitation to participate in ADR is unreasonable, regardless of whether a refusal to engage in ADR might have been justified.

Northrop v BAE Systems [2014] • Held

– D’s refusal to mediate was unreasonable as: a skilled mediator could have helped the parties

to resolve the dispute; the costs of mediating would not have been

disproportionately high; and there were reasonable prospects of the

mediation succeeding.

Laporte & Anor v The Commissioner of Police of the Metropolis [2015] • Held:

– D was only awarded 2/3 of its costs on the grounds that:

D had failed without adequate (or adequately articulated) justification to engage in ADR which had a reasonable prospect of success.

The judge dismissed D’s argument that it thought that the Cs would only accept a financial offer which D was unlikely to make, therefore ADR was not appropriate.

Other issues• Late withdrawal from a mediation• Failure to attend a mediation • Unreasonable stance in a mediation• The future