Whether or not to mediate...?

 
John Mulcare, Wynne Baxter, Lewes

While Mr Hurst, in person at the hearing, conceded that his claim had no merit and withdrew it, he submitted that, since he had asked Mr Leeming to mediate and had met with a refusal, he should not be liable for Mr Leeming's costs.

Mr Justice Lightman considered Mr Leeming's five reasons for his refusal to mediate and dealt with them in this way.

Five reasons not to pay

First, Mr Leeming contended that the legal costs already incurred in the proceedings were heavy.  Lightman J. indicated, however, that this was not a reasonable ground for a refusal, but merely a factor to be taken into account in the mediation.

Secondly, Mr Leeming mentioned the seriousness of the allegations of professional negligence.  This, again, was not a reason not to attempt a mediation.

It was thirdly contended by Mr Leeming that there was a total lack of substance to the claims made but Lightman J. responded that the fact that a party believes he has a watertight case is no justification for refusing to mediate, and remarked in his judgment:  "That is the frame of mind of so many litigants".

Fourthly, Mr Leeming raised the lack of any real prospect of a successful outcome to any mediation proceedings because Mr Hurst's objective was a substantial payment from Mr Leeming which he might not obtain from proceedings on a claim without merit.

Mr Leeming's fifth point also indicated that mediation had no real chance of success in view of the character of Mr Hurst as revealed by the actions he commenced and his response to the explanation of Mr Leeming's conduct.

Judicial guidelines

Mr Justice Lightman said that the critical factor in his view was whether, objectively viewed, a mediation had any real prospect of success.  In the light of Mr Hurst's activities and attitude to the date of the hearing, he found for Mr Leeming on the basis that mediation would have had no realistic prospect of success in those circumstances.

In his judgment, Lightman J. gave the following useful guidelines:

"If mediation can have no real prospect of success a party may with impunity refuse to proceed to mediation on this ground.  But refusal is a high risk course to take, for if the court find that there was a real prospect, the party refusing to proceed to mediation may, as I have said, be severely penalised.

"Further, the hurdle in the way of a party refusing to proceed to mediation on this ground is high, for in making this objective assessment of the prospects of mediation, the starting point must surely be the fact that the mediation process itself can and does often bring about a more sensible and more conciliatory attitude on the part of the parties than might otherwise be expected to prevail before the mediation, and may produce a recognition of the strengths and weaknesses by each party of his own case and of that of his opponent, and a willingness to accept the give and take essential to a successful mediation.

"What appears to be incapable of mediation before the mediation process begins often proves capable of satisfactory resolution later."

Therefore, when approaching the question of mediation in any proceedings, perhaps the following points should now be considered:-

• Rather than ask whether a case is suitable for mediation, ask why is it not.  The answer may be that a legal precedent needs to be established, injunctive relief is sought or that the whole matter turns on the interpretation of fact or law which, if found in favour of one party would end matters completely, e.g.  missing a strict time limit.
  
  
• Even then, consider whether as good if not better a result might be obtained by mediation, e.g. could a wide ranging settlement supplant the need for injunctive relief?
  
  
• Has mediation a real prospect of success? The guidelines of Hurst v Leeming are of obvious importance in deciding this and, as mediators know, many a dispute which appears incapable of solution at the outset of a mediation suddenly produces a settlement, often through agendas which have little to do with the matters in dispute.  It is, perhaps, one of the most important factors in mediation since the parties to a dispute often have hidden agendas which, when disclosed to a mediator, drive the solution that is finally reached.
  
  
• It is not always apparent from the outset that a party may not be a suitable candidate in a mediation.  Even if a party initially appears intractable to a mediator and refuses to 'move off the blocks', he still may be persuaded to do so once he has heard the position of his opponent in the simplified detail used in mediations and, perhaps, then appreciates what the claim is really about.
  
  
• If, despite this, a party still refuses to become involved in the mediation, the mediator himself can end the proceedings, leaving the parties either to resort to the courts or arbitration or, less likely, to a 'drop hands' situation.  A return to the mediation table is, of course, a continuing option.

Penalties of refusal to mediate

In the light of Hurst v Leeming, and the established track record of success of mediation, a refusal to mediate may, at best, bring the dispute within the small proportion of cases that are not appropriate for mediation and, at worst, and now more likely, incur a severe penalty in court proceedings.  Bearing in mind the high success rate (80%+) and the low cost of a day's mediation (for most mediations are usually concluded within a day) in comparison with the cost of court proceedings, there is little to be lost by attempting mediation in the majority of cases.

For those who still consider that there are problems in using mediation but have not yet tried the procedure then, apart from the Court's guidance, they should perhaps also consider that of Churchill in a wartime directive regarding Mulberry Harbour: "Pray do not argue the difficulties.  The difficulties will argue themselves".

This article appeared in Issue 31 of "The Bulletin of the Agricultural Law Association".