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Rules on the response
Rules made pursuant to Proposal 67 should be explicit as to the degree of
participation in the mediation attempt necessary to avoid potentially adverse costs
consequences. The required participation might, for instance, extend to appointment
of a mediator plus attendance at a preliminary session or to the parties progressing to
some other stage of the mediation defined by the applicable mediation rules.
Clear-cut rules to this effect would meet the anxieties expressed by some respondents
to the consultation that inquiries by the court into whether there had been
unreasonableness in the course of a mediation would fatally impair the confidential
and "without prejudice" nature of mediation, essential for its success. The rules as to
what constitutes a sufficient response should make it clear that in any subsequent costs
application, the court would not be concerned with inquiring into how or why any
attempt at mediation failed, but merely as to whether there was an unreasonable
refusal to proceed to the required degree of participation by the party concerned.
Privileged and confidential communications arising in any mediation attempt would
not be disclosed.
The approach to unreasonableness
A number of respondents to the consultation doubted whether it would be possible to
define satisfactorily "unreasonableness" or "lack of cooperation" in relation to
mediation. In the Working Party's view, given the almost infinite range of
circumstances which may bear upon a decision to refuse mediation, the question of
what constitutes unreasonableness in the circumstances of a particular case is
quintessentially a question which should be left for determination by the courts
bearing in mind the underlying objectives referred to in Recommendation 3 above.
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