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Compulsory Mediation for Litigators?
March 29, 2021

Should Mediation be made compulsory for Litigators?

The Civil Procedure Rules encourage would-be litigators and parties to litigation to consider alternative dispute resolution whether in pre-action conduct before litigation commences or at various points during the litigation process and the Courts can impose costs and other sanctions on parties who unreasonably refuse to do so.

What is Mediation?

Mediation is a method of alternative dispute resolution and it has been referred to as a voluntary, confidential and flexible method of alternative dispute resolution which involves a neutral third party assisting parties to reach a settlement of their dispute but where control over whether a dispute is settled and on what terms remains with the parties.

The Law Society Gazette has recently reported comments which it says the Master of the Rolls, Sir Geoffrey Vos, has made to the effect that mediation should not be seen as “alternative” but should be “part and parcel” of resolving all disputes.

The Civil Justice Council is expected to report shortly on its review as to the extent to which litigants should be forced to mediate and, if so, in what circumstances.

Here is a link to the article in the Gazette published on 29 March 2021:

Compulsory mediation back on the table as too few opting into ADR | News | Law Gazette

Sometimes, when we draft commercial agreements for clients, we consider with them whether to add a mediation clause that triggers in the event disputes arise. A basic clause might read something like:

“If any dispute arises in connection with this agreement, the parties agree to enter into mediation in good faith to settle such a dispute”.

As drafted, such a clause would not guarantee that mediation would take place in the event of a dispute and it would not preclude parties from pursuing other potential avenues for resolution.

To the wording above, clients might sensibly want to consider adding provisions to include some of the following matters:

    • what type of dispute would trigger mediation;

    • how the mediation should be triggered eg. by serving a notice;

    • how a mediator should be appointed eg by an independent third party if there is no agreement by the parties;

    • the timing, venue and other logistics of any mediation;

    • whether any mediation is intended to prevent or delay the parties from referring the dispute to arbitration, adjudication or to the Courts to decide.

Mediation provisions in an agreement may also adopt standard procedures. For example, here is a link to a document published by CEDR with details of its model mediation procedure: CEDR Model Mediation Procedure May 2022

Is Mediation always necessary?

Mediation may not be suitable for all parties or all types of disputes and there are disadvantages which parties will need to consider for example: that mediation is ‘non-binding’ in nature; if unsuccessful, it may add delay and cost to resolving the dispute and there are limits to what a mediator can do to assist the parties eg. a mediator cannot enforce disclosure of documents or information during the mediation process.

Contact our Mediation and Litigation Solicitors

If you have any queries or require any specific advice or assistance about mediation or alternative dispute resolution or any of the issues referred to in this blog, please contact Muscatt Black Graf by telephone on 0207 586 1141 or by email to contact@muscattblackgraf.com, or fill in our online contact form.

This blog was prepared on 29 March 2021. It is not intended to be advice and should not be relied upon as such.

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