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We recently posted a blog which contained valuable tips on how to prepare for a mediation. In this post we are focusing on what you should and shouldn’t do when you first receive an offer to mediate.

It is well known that refusing to accept an offer to mediate can have serious cost consequences for the refusing party, even if the refusing party is eventually successful at trial.

This position has recently been extended by the Court of Appeal to apply where a party fails to respond to an invitation to participate in mediation*. It is now clear that failing to respond to an invitation to participate in mediation is itself considered to be unreasonable, regardless of whether there was a good reason for refusing.

The decision seeks to avoid wasting judicial resources by encouraging all parties to discuss their respective positions in a timely and constructive manner. A dispute may not be completely resolved through mediation, but an effective mediation process should help to narrow down the key issues and help the parties to focus on the future of their businesses, rather than past differences.

Whether or not you wish to participate in a mediation, once a mediation is proposed you must respond promptly, otherwise you run the risk of being on the receiving end of an adverse costs order. 

Practical guidance on accepting an invitation to mediate:

1. If you receive an invitation to mediate and wish to accept it, respond promptly to:

  •          confirm dates on which you are available
  •          ask for any further documents or information which you may need
  •          make your own proposals as to the choice of mediator; and/or
  •          suggest a location for the mediation to take place.

2. Do not wait for the inviting party to make their proposals.

Practical guidance on refusing an invitation to mediate:

  • If you do not wish to mediate, respond promptly with a valid reason as to why you are refusing the invitation, for example, a failure to comply with the  Pre-Action Protocol for Construction and Engineering Disputes
  • You should also regularly review your reason for refusing to mediate on an ongoing basis, to ensure that the reason continues to be reasonable. The circumstances of either party may change, in which case mediation may be worthwhile at a later date.

For more information, email blogs@gateleyuk.com.

*PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013)


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.