When settling a commercial dispute, the importance of at least trying mediation has been highlighted by three recent cases in which the judge took a dim view of the defendants’ failure to do so.
It follows a call from the government for companies to avoid ‘destructive litigation’ as concerns grow that the escalating number of disputes stemming from the Covid-19 pandemic could potentially overwhelm the courts.
Here at Wards Solicitors, one of the top-rated firms in the South West for client service, we always encourage mediation, which is a part of Alternative Dispute Resolution.
We fully appreciate that if you should find yourself in dispute with a business partner, consumer or supplier, you will want to avoid the expense, stress and time commitment of litigation if at all possible. Our aim always is to try to resolve your problem to your satisfaction without going to court.
It seems clear that if you refuse to engage in settlement discussions with the opposite party, you do so at your peril – particularly now as the pressure on the court system’s time and services mount.
In three cases earlier this year, the defendant was penalised for either refusing to mediate, ignoring requests to mediate or providing inadequate reasons for refusing to mediate.
In the case of DSN v Blackpool FC (2020), Mr Justice Griffiths awarded the claimant the extra bonus of indemnity costs for an extended period because he was so unimpressed with the defendant’s “inadequate reasons for refusing to mediate”.
He said: “No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution….
“Settlement allows solutions that are potentially limitless in ingenuity and flexibility, and they do not necessarily require any admission of liability, or even a payment of money.”
He added: “The costs of an action will not always be limited to financial costs. A trial is likely to require a significant expenditure of time, including management time, and may take a heavy toll on witnesses even for successful parties, which a settlement could spare them.”
Our award-winning team of specialist commercial dispute lawyers – all experienced commercial negotiators – work with businesses of all sizes to quickly and efficiently resolve disputes as cost-effectively as possible.
We focus on what’s important to you and your business and aim for the best possible result.
Whilst our starting position is always to try to settle disputes through negotiation or mediation and arbitration, if a court battle is the only way forward, we will use our skills and expertise to give you the best chance of winning.
Our Legal Guide, Understanding Mediation and Alternative Dispute Resolution, explains the process in more detail.