Even obstinate parties should mediate early!
According to the Court of Appeal, even obstinate parties should mediate early in most cases.
The Burchell case
In Burchell v Bullard & Ors [2005] EWCA Civ 358 (08 April 2005) the Court of Appeal decided that the unreasonable refusal of an offer to mediate before court proceedings had even started could merit a sanction against the refusing party in costs.
Obstinacy and professional advice
Importantly, the Court of Appeal also concluded that the refusing party cannot rely on its own obstinacy as a basis for saying the mediation would have had no reasonable prospect of reaching a settlement. Furthermore, the refusing party may not even be able to rely on its solicitor's or expert's advice either, where the result shows that mediation ought reasonably to have been attempted.
Advice
It is therefore clear that parties should take the following steps in any dispute:
- consider the use of mediation at the earliest practicable stage
- propose or agree to mediation where it would have reasonable prospects of success (which will mostly be the case)
- avoid refusing mediation purely on the basis of professional advice or because of their own obstinacy. (More information on the trend to encourage mediation by the Government and the courts)
