Judges favour mediation

by | Feb 7, 2011

The story of Burchell v Bullard is a good example of why mediation should be used to resolve disputes. In the view of an Appeal Court Judge, a five year legal battle at a cost of £185k should have been avoided by simply mediating the issue to begin with. The story goes like this:

In 2000, Mr Burchell, a local builder in Bournemouth is building an extension to Mr Bullard’s house. The agreement is that he will be paid in four stages as the work progresses. When he presents his third bill, near the end of the project, Mr. Bullard refuses to pay it, claiming that the work is not up to scratch.

What follows is a blizzard of correspondence between the two men and then between their lawyers. In 2001, the builder’s solicitor suggests mediation might be the best way to resolve the dispute. The response from Mr Bullard turns this down because the “matters are too technically complex”.

The dispute finally goes to court  in March 2004. Mr Burchell (the builder) claims that Mr Bullard owes him £18k  for the work he has done. Mr Bullard’s counter claim is for £100k for shoddy work and damages. The court sides with the builder and judges that Mr Bullard should pay the builder £5k.

Then comes the problem of costs which are enormous at  £185k, compared with the tiny amount of the settlement. At the Court of Appeal in 2005, Lord Justice Ward has this to say:

“..the merits of the case favoured mediation. The defendants behaved unreasonably in believing, if they did, that their case was so watertight that they need not engage in attempts to settle…There was clearly room for give and take. The stated reason for refusing mediation that the matter was too complex for mediation is plain nonsense. ..The costs of ADR would have been a drop in the ocean compared with the fortune that has been spent on this litigation…The claimant has satisfied me that mediation would have had a reasonable prospect of success. The defendants cannot rely on their own obstinacy to assert that mediation had no reasonable prospect of success..”

He went on to say:

“…the high rate of a successful outcome being achieved by mediation … also its established importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value. The profession can no longer with impunity shrug aside reasonable requests to mediate.”

In other words,  a five year legal battle at a cost of £185k could have been avoided by simply mediating the issue to begin with.

You can see the full Court of Appeal judgement here: