Anxious you will be forced to agree to something you don’t want? Concerned about being pressured into an agreement? The law in this area has been evolving for some time now and will continue to do so.
At mediation, your choice and decisions matter.
- Mediation may be a compulsory part of your court process, but there is still much that is within your control
- You can decide whether to remain in the mediation process, or leave
- Your choice to reach an agreement, or not
- and you decide the terms of any settlement.
- You have control over the outcome.
If your case goes to Court or a Tribunal, a Judge makes the decisions, and you lose the flexibility of choice.
There has long been is a debate about whether the justice system will make mediation compulsory. In March 2023, The Civil Procedure Rules 1998 (legislation.gov.uk) stated that the Court must encourage the parties to use an alternative dispute resolution procedure if considered appropriate. In November 2023, in a court case called Churchill & Merthyr Tydfil County Borough Council, the Court of Appeal decided that the Court has the power to compel the parties to engage in alternative dispute resolution. In other words, a Judge can order the parties to mediate.
Litigation is lengthy and costly. The Court rules require a party to explain to a Judge why they chose not to mediate. The change in the legislation could therefore be a step that re-enforces the existing court preference and removes cases from the court system.
What do you need to know?
- The Court will ask why you refuse to mediate or, potentially, why mediation failed.
- If your explanation does not meet the Court’s satisfaction, you could face cost consequences. Costs are now a real risk of refusing to mediate and it may not be possible to pursue a claim unless an alternative means of settling the dispute is explored.
- Whether you settle or agree will still remain your choice.
- Going to Court or Tribunal can be a lengthy and expensive process.
- You can give evidence, but the outcome is not in your control.
- Mediation is quicker and, in most cases, much cheaper.
- When mediating, you choose the mediator, you can’t choose the Judge!
- As of writing there are no plans to force a mediator to provide evidence on why a mediation failed or if a party co-operated with the process. This in itself would seem to undermine the independence of the mediator’s role. But, the position continues to be debated and will no doubt evolve.
Regardless of whether you feel pressured to mediate or not, there can be significant advantages in pursuing mediation. If you would like to know more about how mediation can help you, get in touch using the contact form.
