When is it reasonable to have a second mediation

Sometimes once is not enough. If a case doesn’t settle at a first mediation why not have a second, or even third, bite of the cherry? I have dealt with cases where two or three mediation sessions have taken place. The question in this post is: does the Court expect people to mediate a second time.

The Court recently considered this in the case of a dilapidations claim. The case was:
England and Wales High Court (Technology and Construction Court) Decisions >> Coldunell Ltd v Hotel Management International Ltd EWHC 3084 (TCC) (02 December 2022) 
URL: http://www.bailii.org/ew/cases/EWHC/TCC/2022/3084.html 

The Court in this case looked at conduct of the litigation and whether it should affect the costs awarded. It is common for the Court to look at this at the end of the case and see whether the parties have agreed or refused to mediate. The days of “winner takes all” are over and the Court has wide powers to decide who pays the costs. In this case the Court said that:

Mr Lees further submitted that the following conduct on the part of the Claimant renders it unjust to award the Claimant the CPR rule 36.17 consequences. Firstly, it is said that the Claimant acted unreasonably in refusing to participate in a second mediation on the terminal dilapidations claim when a second mediation stood a reasonable and realistic prospect of success. I do not think that the fact that the Claimant declined a second mediation in November 2019 was unreasonable. By November 2019, the parties had already participated in a mediation a matter of months earlier in relation to the dilapidations claim which had failed. The Defendant’s solicitors appear to have raised the prospect of a further mediation, albeit without instructions, in a telephone conversation on 11 July 2019. The Claimant’s 13 November 2019 Offer referred to the without instructions proposal, expressed the Claimant’s view that a further mediation would not be worthwhile and referred to two unsuccessful mediations in relation to the dilapidations at the Mitre, the first presumably in connection with the Lease Renewal Proceedings. Whether the Defendant was in fact willing to mediate a second (if not third) time is not in fact clear since the possibility was raised by the Defendant’s solicitors without instructions. Further, it is clear from the three offers made by the Claimant that it was doing everything it could to settle its claim at substantially less than the dilapidations schedule indicated it was worth at the time. By its 13 November 2019 Offer, the Claimant stated its willingness to settle its claim for £380,000. However, the Defendant’s offers were substantially less than those made by the Claimant. It is difficult to see what more could have been achieved through mediation that could not be achieved through the Claimant’s offers other than the Claimant being required by the Defendant to reduce its offers even further.

It is clear from this decision that the Court did not rule out that in certain circumstances it would be reasonable to mediate a second time. In this particular case it wasn’t unreasonable to mediate a second time. We therefore suggest that if you don’t succeed at mediation the first time round, why not try, try and try again!