If you want to refer a dispute to mediation but your opponent won’t play ball your options are limited because mediation is a voluntary process. However you could try the following:
Point out the costs consequences of refusing to mediate.
Under the CPR the courts have the power to apply costs penalties against parties who unreasonably refuse to mediate. See the cases of Dunnett v Railtrack PLC and Halsey v Milton Keynes NHS Trust. Ask your opponent to spell out their reasons for refusing to mediate.
Ask the court to make an “Ungley Order”
Lord Justice Dyson said in the Halsey case that he could see no reason why this type of order should not be routinely made. See paragraphs 32 and 33 of the judgment. The order is as follows:
The parties shall by consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.
The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable.
For further information and more details about how to get court orders see here and this more detailed article (these posts will open in a new window).
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