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(f)
The rules should make it clear what conduct would constitute a sufficient
attempt at mediation. The rules might, for example, specify that the request or
recommendation should expressly identify the (previously judicially approved)
institution and rules under which the proposed mediation is to take place. They
should also specify the minimum extent of participation in the mediation
process required to constitute a sufficient attempt.
(g)
It should, however, be fundamental that any settlement is arrived at on a purely
consensual basis and does not become binding until a settlement agreement is
drawn up and signed by the parties. The parties should be free to withdraw
from the mediation without reaching agreement. If such withdrawal occurs
after the required stage of participation in mediation has been reached, no
adverse costs consequences should follow.
(h)
The court should not have powers to inquire into what occurred during the
mediation or to inquire, for instance, into why it failed or whether such failure
involved unreasonable conduct on anyone's part. The mediation process should
remain confidential and should proceed on a without prejudice basis.
(i)
The proposed costs sanctions rule should only bite (subject to the court's overall
discretion) where there has been an unreasonable refusal to engage in the
mediation either at all or up to the prescribed stage, these being facts capable of
being established without inquiring into any confidential or without prejudice
communications. Conversely, where a party can provide a reasonable
explanation for non-participation, he should not suffer any adverse costs order.
(j)
What constitutes a reasonable refusal should be determined by the courts,
developing standards inductively from the cases and seeking such guidance as
may be appropriate from jurisprudence being developed in England and Wales
and elsewhere.
(k)
Whether a costs sanction ultimately should be imposed, and if so the nature of
that sanction, should be matters in the court's discretion.
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