This article was first published in the Personal Injury Brief Update Journal in May 2009.
As a mediator I have been asked by frustrated mediation clients what they can do when an opponent refuses to agree to mediate or, as frequently happens, rudely ignores the invitation. My answer depends on whether or not proceedings have been issued. Before giving my response I would like to point out that mediation is neither appropriate nor necessarily helpful in every case. It can be perfectly proper conduct for a personal injury litigant to say that mediation is not suitable either at all or at the moment, provided they give a reasonable explanation for taking that stance.
Pre-proceedings you should point out to your opponent the content of paragraph 2.16 of the personal injury pre-action protocol which states “The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs.”
It will be your intention to refer to their refusal to mediate when costs are considered.
Once proceedings have been issued you can ask the court to make a so-called “Ungley” order. The relevant part of such an order is:-
The parties shall by [the date determined by the court] 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.
Such orders should be made routinely according to Dyson LJ who said in Halsey v Milton Keynes General NHS Trust 2004
“We can see no reason why such an order should not also routinely be made at least in general personal injury litigation, and perhaps in other litigation too. A party who refuses even to consider whether a case is suitable for ADR is always at risk of an adverse finding at the costs stage of litigation, and particularly so where the court has made an order requiring the parties to consider ADR.”
Any district judge uncertain about making an order can be further persuaded by the comments of Sir Anthony Clarke, Master of the Rolls. He is very strongly in favour of the courts giving encouragement to mediation as part of its duty to actively case manage litigation as set out in CPR 1.4(2)(e) and has said so many times. In a speech he made to the Civil Mediation Council in 2008 he said
“It seems to me that the court has sufficient powers at present routinely to direct the parties to take part in a mediation process or attend a mediation hearing during the course of the pre-trial stage of any proceedings … Such orders could surely be made either routinely on allocation as anticipated by CPR 26.4 (1) or at the first case management conference. They could easily be factored into and become an integral part of standard directions. To my mind the power exists under a combination of the court’s case management powers under CPR 1.4 (2) (e) which specifies that ‘encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure’ and CPR 3.1 (2) (m), which enables the court to take any step in managing a case to further the overriding objective. It seems to me that furthering the overriding objective in this sense calls for the case management power to be applied consistently with the duty under CPR 1.1 (2) (e) which requires the court to take account of the needs of all litigants and the court in furthering the overriding objective; to further access to justice for all. Equally, it is surely part of the parties’ duty to assist the court in the furtherance of the overriding objective that they should take active steps to take part in mediation (CPR 1.3).”
I have posted an example of a witness statement that could be used to support an application for an Ungley order and you can see it at The statement goes into some further details about solicitors’ duties to mediate. The moral is not to accept no as an answer. Insist your opponent provides appropriate reasons for refusing to mediate. If the reasons are not sound try an application. If the reasons are sound is there anything you can do to answer the objection that will get your opponent around the mediation table to resolve your claim?
Philip Hesketh is a full time professional mediator and author of the Personal Injury Mediation Service
