In Nigel Witham Ltd v Smith and another – Butterworths Law Direct 21.1.08 the TCC tried to give guidance on the best time to consider mediation, saying that too early in the proceedings it is likely to lead to a hardening of positions and decrease the chances of settlement, but too late in the proceedings can mean that the costs incurred become a major obstacle to the success of mediation. There is therefore a brief ideal spell in between, when the parties know what the issues are, but before too many costs have been incurred, which is the ideal time to consider mediation. In this case that perfect moment for mediation was missed, but it was found that there was nothing to show that this was due to the Defendants’ behaviour such as to preclude the Defendants from recovering their costs when they were successful after a trial.