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Rules on the request
It is important that the rules leave the parties in no doubt as to when a request for
mediation which may operate with adverse costs consequences has been made.
In the Working Party's view, it ought in principle to be possible for :-
(a)
one party to make an operative request for mediation in writing directly to
another party; or
(b)
the court, on the application of any party, upon being satisfied that the case is
prima facie appropriate for mediation, to make a judicial recommendation that
the parties attempt mediation; or
(c)
the court, upon being satisfied that the case is prima facie appropriate for
mediation, to make, on its own motion, a judicial recommendation that the
parties attempt mediation.
Where this has been done and mediation has been refused, the party who requested
mediation may be able to contend that such refusal was unreasonable and that the
order for the costs of the action should take this into account (in what may even be a
decisive manner).
It would also be important for the request or recommendation to be reasonably specific
as to the mediation sought. If a party were to make an equivocal or ambiguous request
for mediation, leaving the other side uncertain as to what was being proposed, it would
obviously be unjust for that party to be penalised for a refusal. It would therefore be
desirable for it to be made a requirement that the request or recommendation for
mediation specify the (previously judicially approved) institution or rules pursuant to
which the requested mediation should take place.
Notes
Cable & Wireless PLC v IBM United Kingdom Ltd [2002] EWHC 2059 (11 October 2002) is
instructive by analogy in this context.
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