What if one party doesn't want to mediate?

If one or both parties don’t wish to use mediation, the Civil Procedure Rules state that the court has power to impose sanctions on a party, including a stay on proceedings, interest and cost penalties.

The courts have imposed harsh cost consequences on those parties who have unreasonably refused to mediate. For example, not recovering costs to which they would otherwise have been entitled, and having to pay costs on an indemnity basis.

While in the case of Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576, the Court of Appeal decided that to oblige parties to refer their dispute to mediation would be unacceptable, obstruct their right of access to court and would be a violation of Article 6 of the Human Rights Convention, more recently there have been calls to review this.

For example, in the case of Bradley v Heslin [2014] EWHC 3267 (Ch) the judge suggested a form of wording for directions in boundary disputes and rights of way disputes, which would make it compulsory to attempt mediation in such cases. The judge said: “The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice”.  

Mediation has many benefits – it is both quicker and cheaper than court proceedings and it is the parties themselves who decide the solution. Mediations are also confidential and so allow the parties to preserve relationships and to move forward to concentrate on their businesses and/or lives.

You can ask us to help if one party refuses to mediate and we will discuss the possibility with their solicitor.