Costs sanctions for refusal to mediate
Costs sanctions for refusal to mediate

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Costs sanctions for refusal to mediate
  • CPR encouragement to consider ADR
  • The court’s approach on costs sanctions for refusal to mediate (Halsey and beyond)
  • When mediation may not be reasonable
  • Imposing costs penalties on losing parties who refuse to mediate
  • Delay in mediating
  • Is there a special case for neighbour disputes?

This Practice Note addresses the court’s power to encourage resolution through the ADR mechanism of mediation. The leading case is Halsey v Milton Keynes. The principles applied are considered in deciding whether to impose costs sanctions.

While the court cannot force parties to settle their differences outside the courtroom, the Court of Appeal in Halsey v Milton Keynes General NHS Trust made it clear that the courts can impose costs sanctions on those who unreasonably refuse to consider other methods of resolving their disputes. For cases in this area since Halsey v Milton Keynes General NHS Trust, see Practice Note: Costs consequences of refusing to mediate—key and illustrative decisions.

CPR encouragement to consider ADR

The CPR contains a number of measures designed to encourage parties to consider ADR. See Practice Note: ADR—pre-action and post-commencement of court proceedings. Where the parties do not accede to this encouragement the court can look at their behaviour retrospectively when assessing who should pay what; it will consider whether or not they should have attempted ADR earlier or at all, and had they done so, whether the dispute would have been settled earlier and at lower cost.

The starting point is CPR 44.4(3)(a). This provides that:

‘The court will also have regard to the conduct of all the parties, including in particular…

(ii) the efforts made, if any, before