Mediation

At RCB, we have been employing and advising on mediation since its introduction to the UK 20 years ago, working with leading mediation providers such as CEDR and IPOS and single, dedicated mediators. Member Partner Steven Reynolds was one of the first accredited mediators in the UK and all three member partners have conducted many mediations for clients. In addition, we also advise clients on other resolution methods of Expert Determination, Early Neutral Evaluation and the use of Dispute Review Boards.

What is Mediation?

Mediation is an informal “without prejudice” process where an appointed third party will mediate between the parties on a pre-agreed date, seeking concessions from each side until a deal is reached. Commercial and professional parties can resolve their disputes quickly, without any admission of liability and in certain cases with the opposing parties satisfied to continue their commercial relationship. The Courts encourage the settlement of disputes by mediation, often penalising parties who refuse to mediate:

  • Dunnett v Railtrack [2002]: Although the Defendant won at trial, its costs were disallowed because it refused to consider arbitration or mediation.
  • Halsey v Milton Keynes NHS Trust (2004) and Steel v (1) Joy (2) Halliday [2004]: The winning party can have its costs disallowed if it can be shown that it unreasonably refused to mediate its claim before trial.
  • The Wethered Estate Ltd v (1) Michael Davis (2) Alison Davis (3) Foundations for Living [2005]: The court found that the Claimant had not unreasonably refused to mediate until after proceedings had started, since the dispute involved questions of construction of an agreement against a disputed factual background.
  • Reid v Buckinghamshire Healthcare NHS Trust [2015] EWHC B21 (Costs): In an unusual step, the Master penalised the unsuccessful Defendant with an award of indemnity costs from three days after the invitation to mediate was sent.
  • PGF II SA v OMFS Co 1 Ltd [2014] 1 W.L.R. 1386: The Court of Appeal held that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable. That is so even if a refusal to mediate might have been reasonable if the receiving party had engaged with the request in a meaningful way.
  • Should I use an Evaluative or Facilitative Mediator?

    Depending on the nature of the parties and the dispute, RCB gives serious thought on whether to use an Evaluative or Facilitative Mediator. An Evaluative Mediator evaluates the case and advises where s/he thinks you should settle. In cases where negotiations have previously taken place but failed, the Evaluative Mediator can often knock heads together to reach that all-important deal. The Facilitative Mediator withholds his or her opinion and focuses on relaying each party’s message to the other. This approach is useful where the issues and the relationships are not complicated and the mediator can ride on the coat tails of both side’s knowledge and understanding of the matter and the other party.