Well the answer is becoming increasingly in the affirmative unless one is prepared to risk running the wrath of the court or worse!
The use of mediation in resolving disputes, whether they be commercial or personal battles rather than incurring the costs and constraints (particularly as to available outcomes) of a court trial is gaining momentum. The engagement of an accredited mediator to assist the parties in finding a solution to the issues between them in a confidential and secure forum has much to commend it. Mediators do not impose outcomes on either party. It is for the parties aided by the facilitative skills of the mediator to find a solution with which they can each move forward. It is invariably less costly in time and money that a court action and the range of solutions so much wider than that which a court could order. Added to that, statistics show that the vast majority of mediations are successful in securing a settlement between the warring parties.
There are a growing number of decisions flowing from the courts which emphasise the expectation of the courts that the parties should seek to settle their arguments outside the doors of the court and by way of mediation. Parties are expected to mediate and to respond positively to an offer by the opponent to mediation. Failure to respond to an offer of mediation, whether you eventually win or lose the case, will be frowned on, and worse by the court.
In a recent case Reid v Buckinghamshire Healthcare NHS Trust, Master O’Hare ordered the defendant to pay costs on the indemnity basis from the date it failed to respond to an offer to mediate made by the Claimant.
In his judgment Master O’Hare said “If the party unwilling to mediate is the losing party, the normal sanction is an order to pay the winner’s costs on the indemnity basis, and that means that they will have to pay their opponent’s costs even if those costs are not proportionate to what was at stake. This penalty is imposed because a court wants to show its disapproval of their conduct. I do disapprove of this defendant’s conduct but only as from the date they are likely to have received the July offer to mediate.” You have been warned!