Commercial dispute resolution

Why should I mediate?

Mediation is a very popular alternative to having disputes resolved through the courts. There are a significant number of benefits to mediating a case including the often significant savings in the cost and time spent by the parties.

In the recent case of Rolf v De Guerin, the Court of Appeal demonstrates the judiciary’s desire to actively promoting the merits of mediation and penalising those parties who fail to seize the opportunity to mediate. Rix LJ described the case as a “sad case about lost opportunities for mediation.”

The case concerned Mrs Rolf who claimed £70,000 in respect of unfinished building works from the builder, Mr De Guerin. She made offers of settlement and mediation, both before and after her claim was issued but no settlement was reached and the matter proceeded to trial.  Rolf was only partially successful and awarded just £2,500. De Guerin was awarded some, but not all, of his costs.

The Court of Appeal was asked to consider the issue of whether De Guerin had acted reasonably in refusing to mediate. In making an order that De Guerin was not entitled to recover any of his costs, the court made the following points:

• It was clear to De Guerin that Rolf wished to avoid litigation.
• Negotiation or mediation would have had a reasonable prospect of success.
• Rolf’s attempts at settlement were ignored until it was too late.
• De Guerin’s desire to “have his day in court” was not an adequate reason to reject the proposal for mediation.
• The spurned offers should bear materially on the outcome of the court’s discretion in awarding costs.

Mediation is often the most appropriate and commercial way to resolve a dispute; saving the time, money and stress involved in pursuing a matter to trial. Henmans’ dispute resolution team have a wealth of experience in managing disputes towards mediation.

If you would like to discuss mediation, or other options for resolving your dispute in more detail, please call Andrew Crocombe on 01865 781 059 or email andrew.crocombe@henmansllp.co.uk.

Andrew is an active mediator with Oxford Mediation.