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(f)
Proposal 67: Unreasonable refusal of mediation reflected in costs orders
In the Working Party's view, Proposal 67 presents the preferable option. It envisages
the court endorsing and encouraging mediation in appropriate cases to the extent of
making an unreasonable refusal to mediate an important factor in dealing with the
costs of the action. The court's intervention would be limited to penalising in costs
orders an unreasonable refusal to entertain mediation. For instance, a winning party
might be deprived of costs because of an unreasonable refusal of mediation. The need
to protect legal professional privilege and to preserve the confidentiality of the
mediation process would be respected.
The framework for an approach along the lines of Proposal 67 would require :-
(a)
rules setting out a procedure for requesting mediation thereby constituting a
refusal the basis for an adverse costs order if that refusal were later to be found
to have been unreasonable ("rules on the request");
(b)
rules identifying what would constitute a sufficient attempt at mediation to
eliminate the risk of an adverse costs order ("rules on the response"); and,
(c)
an approach to deciding when a refusal of mediation is or is not unreasonable
("the approach to unreasonableness").
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