Refusal to mediate

Corenso (UK) Ltd v The Burnden Group plc QBD RCJ July 2003

The defendant contended that because the claimant had made no response to an offer to mediate, the claimant should be deprived of its own costs and ordered to pay a substantial part of the defendant’s costs. The Court analysed the various leading authorities and held that the following principle could be derived from them: ‘What shines through is that one must look at any offers of mediation and what happens to them, and that it is possible that a failure to engage in the mediation process may have adverse costs consequences for a successful party. It is not, however, by any means inevitable, and one of the factors which is not expressed in those decisions is that the requirement is for the parties to engage in ADR. ADR is not necessarily mediation. Mediation is one form of ADR. It was the relevant form in Dunnett because that was what was suggested in that particular case. It was the relevant form in Hurst v Leeming because the protocol suggested mediation. In Dunnett, as in Hurst v Leeming, there was no other form of ADR which was suggested. Similarly in the Maxwell Batley cases the only suggestion was mediation. A party can quite properly discharge his obligations to consider ADR, and to attempt to engage in it, without necessarily being prepared to enter into mediation if he takes the view that there are other forms of ADR which are more appropriate or more likely to produce the appropriately desired result. In the present case neither party was at fault: there had been attempts at negotiation; only at a late stage did mediation become a serious issue between the parties. Any problem thus arose at the end of the process rather than at the beginning.’