When the other side refuse to mediate, what can you do?

by | Apr 20, 2015

No mediator can authorise the breaking of the confidentiality of mediation.  It is sacred to the professionalism of being impartial, independent and neutral as well as to allow the parties to speak without fear of any comeback.  It is necessary for us to remain in compliance with professional standards set by the Ministry of Justice, the Civil Mediation Council and the European Code of Conduct for Mediators.

However, we can give you information where information is not legal advice and on the assumption that information that is out there on the internet is just that, information not legal advice, we can refer you to case law or articles.

The court has an overriding interest in justice and if it deems that confidentiality in mediation needs to be overridden for the justice of the case, it may do so.  Note that this is rare but possible as a result of a case called:

Barden, Michael Kieran -v- Commodities Research Unit International (Holdings) Limited, CRU Strategies Limited, CRU International Limited and CRU Publishing Limited – Chancery Division – [2013] EWHC 1633 (Ch)

In addition as a result of Court Procedural Rules being tested in the Court of Appeal, the court can consider costs sanctions for unreasonable refusal to mediate to include failure to reply to a request to mediate as a result of a case called:

PGF II SA -v- OMFS Company –  Court of Appeal – [2013] EWCA Civ 1288

So you can tell the Judge that the other side refused to mediate and that that refusal caused you more costs, time, angst and wait for the Judge to decide if it is fair and reasonable to take that into account in any costs you ask for.

It is at times annoying that the mediation profession has no greater powers to speak to the Court but in the light of our need to be recognised as a proper, full and separate profession more important that we uphold this standard that WE WILL NOT BREAK THE CONFIDENTIALITY OF MEDIATION FOR ANYONE unless the court orders us to do so.