Example Cases of Mediation: How the Courts Have Decided
Why Case Law Matters when considering mediation
There is no strict rule setting out when a party must mediate. The court’s powers come from the overriding objective, its case management powers, and its broad discretion as to costs under Part 44 of the Civil Procedure Rules. It is the decided cases that give those powers their practical meaning, when a refusal to engage in ADR will be treated as unreasonable, what a party must do to protect its position when it declines, whether engaging in other forms of settlement discussion counts and what the costs consequences actually are when a court concludes that a party closed the door without good reason.
The law in this area has moved significantly. The long-standing orthodoxy that a court could not compel unwilling parties to mediate has given way to a recognised jurisdiction to stay proceedings and order parties to engage in alternative dispute resolution, and the Civil Procedure Rules have since been amended to put the case management of ADR on an express footing. What has not changed is that the reasonableness of a party’s conduct is assessed on the facts, case by case, against the whole chronology of the dispute rather than any single letter or refusal.
This page links to detailed analyses of recent decided cases relevant to parties, and their advisers, weighing up whether, when and on what terms to mediate. Each case note explains what was decided, why it matters and what practical lessons it offers.
Recent Case Analyses
Family accused their son of forging documents to take their business
Another costly lesson in refusing to mediate in Fisher v Fisher
Another case where refusing to mediate was not unreasonable
About Robin Somerville
I have personal experience of mediation from both sides. Prior to my legal career, I set up, grew, and sold three modest technology start-up businesses. One became involved in a complex commercial dispute that was settled at mediation.
Given my business background, I understand the urgency of resolving commercial disputes as quickly and with as low risk as possible to minimise disruption wherever that makes commercial sense.
My combination of commercial acumen and legal experience is probably unique and offers benefits across a range of legal areas. These include shareholder, partnership and board disputes, commercial and contract disputes, and employment disputes. Most importantly, it enables me to dig behind the legal issues involved in any dispute to help parties identify solutions that are workable and lasting.
As a mediator with broader concerns about the environment, I have signed the Green Pledge of the World Mediators Alliance on Climate Change.
What My Clients Say
“Robin puts wanting to find a solution before anything else. I wish I had met him four years ago.” Andrew Carmichael, Managing Director, Creative Process
“Thank you so much for yesterday, you are without doubt the best. I am so grateful that you persevered.”
“Sensitive and professional leadership of the mediation.”
“Thoughtful, observant and a positive contributor to the process.”
“I heard today that you were great. It is great to be proven wrong that the mediation would be unsuccessful.”
“A diligent and reliable professional. Invaluable. Perceptive, thorough and inclusive.”
“I highly recommend Robin Somerville. He is incredibly calm, helpful, and patient, with excellent communication skills. He creates a safe and supportive environment, ensuring that both parties feel heard and respected.”
Get in Touch
If you are facing a dispute that would benefit from mediation or if you simply want to understand if mediation is right for you, I would be glad to discuss your options.
Call 020 4538 0246, use the contact form below, or book a call directly.
Important disclaimer: This page is provided for general information and educational purposes only and does not constitute legal advice. The content may not be legally accurate for your specific situation. You must not rely on anything on this page in respect of your legal rights. The law in this area relates to companies registered in England and Wales only. Always seek independent legal advice from a qualified specialist before taking or refraining from taking any action. The author accepts no responsibility for any decisions made or outcomes arising from use of this material. If you would like specific advice on your situation, contact me here.
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