Rogers & Norton News

To mediate or not mediate?

Thursday, January 30, 2014

Mediation has become an increasingly successful method of settling disputes outside of Court, during court action or before proceedings have commenced.    Whilst, generally speaking it is not compulsory, it is now commonplace for Courts to expect parties to mediate and to impose costs sanctions upon those who refuse.

Against such a backdrop, a client will ordinarily be under very real pressure to agree to mediation, irrespective of their wishes.  One of the most difficult decisions to make is when to mediate. 

If you mediate prematurely, the real issues in the case may not yet have crystallised and the mediation may well fail because neither party has enough information to make a reasoned decision about settlement.  However, mediate too late and the legal costs that have then accrued may make the case more difficult to settle.  Peter Hastings comments “Unless a client had a very compelling reason not to mediate, mediation should not be declined. In terms of timing, it can be reasonable to defer to conduct further enquiries, collate additional evidence, have a site inspection, for example”.  

The R&N litigation team is vastly experienced in mediation, both in advising as to the best time to mediate and in actually conducting the mediation itself on behalf of clients.  We have successfully concluded many cases by this method. The team is also experienced  in Adjudication, Arbitration and Expert Determination  and has recently been instructed on a number of cases which are proceeding by way of Expert Determination .  

For further information  on Litigation and ADR  contact  Phil Kerridge on or Peter Hastings on