Ever since the introduction of the Civil Procedure Rules, judges have been trained to give an emphasis towards encouraging parties to mediate. The courts have made decisions disallowing the costs (or part of the costs) of a party if it becomes clear that that party has unreasonably refused to mediate during a litigation process.
Whilst the threat of an adverse costs order is always an inducement on parties to mediate, this threat can sometimes feel too distant. It is therefore interesting to look at an example of the way in which a judge has intervened in an ongoing case by encouraging the parties to mediate.
In the recent case of Andrei Lazari -v- London and Newcastle [2013] EWHC 97 (TCC), Mr Justice Akenhead was faced with an application by the claimant to require the defendant to pay money into court. The claimant was seeking a payment of £100,000 towards her losses. The defendant had admitted liability but opposed the application. It was common ground that the defendant would have to pay at least some damages and/or that the claimant would obtain judgement for a substantial amount of money.
The judge found that there had been a history of non-compliance and non-cooperation on the part of the defendant and stated that he was:
“very concerned to ensure that there are no further delays or disruption in this case, and that there is, and continues to be, the utmost cooperation between solicitors and (as and possibly more importantly) between the experts. I am conscious that the cost of this case could well exceed the amount to which Ms Lazari proves an entitlement”.
He went on to say that:
“the case is crying out to be resolved by mediation or some other settlement process. The relatively small payment into court which I propose to order should concentrate the minds of the parties at least as part of the background to any such process ... a payment into court by L&N of £30,000 would encourage the parties to start serious settlement discussions and to concentrate minds about economic, timely and effective compliance with all outstanding orders...”.
These comments were a helpful reminder to the parties in this case, and whilst the litigation was ongoing, that it is important to consider the opportunity to settle the whole dispute by mediation, no matter what stage it has reached. It is a helpful reminder to us all.