It seems that a refusal to mediate is not an unreasonable choice after all.
This was the decision of the Court of Appeal (Lord Justice Patten) in Graham Gore v (1) Kishwar Naheed and (2) Asim Suhail Ahmed [2017 EWCA Civ 369] on an appeal from the decision of His Honour Judge Harris QC in the Oxford Combined Court Centre.
The underlying dispute concerned the parties’ rights of access to and use of a shared driveway and Mr Gore was the successful party. The Defendants’ appeal largely concerned the failure of the Judge to make some allowance in the costs order for the fact that Mr Gore had refused to or failed to engage with their proposal of mediation.
Lord Justice Patten:
49. Mr McNae referred us to the decision of this Court in PGF II SA v OMFS Company 1 Ltd in which Briggs LJ emphasised the need, as he saw it, for the courts to encourage parties to embark on ADR in appropriate cases and said that silence in the face of an invitation to participate in ADR should, as a general rule, be treated as unreasonable regardless of whether a refusal to mediate might, in the circumstances, have been justified. Speaking for myself, I have some difficulty in accepting that the desire of a party to have his rights determined by a court of law in preference to mediation can be said to be unreasonable conduct particularly when, as here, those rights are ultimately vindicated. But, as Briggs LJ makes clear in his judgment, a failure to engage, even if unreasonable, does not automatically result in a costs penalty. It is simply a factor to be taken into account by the judge when exercising his costs discretion.
50. In this case the judge did take it into account but concluded that it was not unreasonable for Mr Gore to have declined to mediate. His solicitor considered that mediation had no realistic prospect of succeeding and would only add to the costs. The judge said that he considered that the case raised quite complex questions of law which made it unsuitable for mediation. His refusal to make an allowance on these grounds cannot in my view be said to be wrong in principle.
Therefore, it would appear that it’s ok to refuse to go to mediation provided you do not simply ignore your opponents’ proposal. Oh, and you may need good reason to refuse, or perhaps not – depending upon who the presiding Judge is.