Can I Refuse to Mediate?

Mediation can be an excellent and effective way to resolve a dispute, in a cost effective way. But in some cases, one party may use a proposal to mediate as a tactic to delay the inevitable, such as paying a debt that they owe. What can be done in these circumstances?

Can I Refuse to Mediate?

The short answer is yes - you can refuse to mediate if you don't want to, as mediation is a voluntary process. If proceedings have been issued, it is fairly common for a judge to order a stay so that parties can explore the possibility of mediation, but if you don't want to mediate, you don't have to. 

If your opponent asks you to mediate, and you say no, you need to be aware of the consequences that could follow.

What are the Consequences for Refusing to Mediate?

The most serious consequence of refusing to mediate, is being penalised in costs if the matter has to go all the way to a final hearing, such as a trial. If a judge considers that the refusal to mediate was unreasonable, the party who refused could be ordered to pay their opponent's costs, even if they won at trial.

If a judge orders the parties to consider mediation, it could be an indication that the matter would not be cost effective or a good use of the court's time to take any further. Therefore, if a judge makes this kind of order, it should be taken very seriously.

Cases Where Parties Refused to Mediate

There have been cases where parties have refused to mediate, which highlight the potentially serious costs consequences of failing or unreasonably refusing to mediate. Two cases against the NHS Litigation Authority relating to costs proceedings, as the underlying cases had already been resolved, illustrate the potential consequences.  

In the case of Reid v Buckinghamshire Healthcare NHS Trust, the judge awarded the claimant costs on an indemnity basis, running from three days after they had made an offer of alternative dispute resolution, which the defendants had refused. The judge said the defendant’s failure to agree to mediate was ‘unreasonable’. The judge also commented that it had taken the defendant 6 weeks to reply, declining to mediate.

In the second case, Bristow, the court ordered that all costs should be paid on the indemnity basis, again because an offer to mediate had been unreasonably refused.

It is particularly noteworthy that these cases both involve public funds, in which the taxpayer has been put to higher cost because of the NHS Litigation Authority's unreasonable refusal to mediate. 

In conclusion, where one party wants to mediate a dispute, and their opponent unreasonably refuses, the refusing party needs to be aware that serious costs consequences could follow. It is always advisable to follow any orders given by the court, to consider mediation or other types of alternative dispute resolution. It is always worth giving serious consideration to a slight delay in proceedings, to allow mediation to take place, even if it is ultimately not successful. 

If one party offers to mediate and the other refuses, the potential delay in reaching a resolution is often likely to be outweighed by the risk of refusing to mediate and being penalised in costs at a later stage. 

Samuels Solicitors are experts in all types of commercial litigation. We have offices which span the country with bases in Devon and Newcastle and have a national client base. We understand the importance of mediation and other types of alternative dispute resolution, and can help you navigate resolving your case at an early stage. If you want to know whether you should mediate or litigate your dispute, we can help.

Contact us today for a free discussion about how we can help you.