Mediation Post Coronavirus

Mediation Post Coronavirus

2020 has been a rollercoaster of a year from mid-winter storms and flooding to the ever emerging threat of COVID-19, court closures and social distancing. In the wake of coronavirus Lord Burnett of Maldon, the Lord Chief Justice, has made it clear that the court system will never again operate as it did before.

Cases Post PGF II Litigation Solicitors will be fully familiar with PGF II. In the wake of Coronavirus, 3 further cases have come in quick succession penalising parties who failed to mediate, laying down a marker for more stringent times ahead. The Law Society commented that there is “a very real economic incentive for parties to say ‘yes’ to mediation, because the price of saying ‘no’ has become rather costly.”

Amidst the clamour for the revival of the sporting season another Football Club entered the legal arena only to receive a red card at the hands of the courts. Fortunately for southern football fans this was a more distant northern cousin.

In DSN v Blackpool FC [2020] EWHC 670 (QB) which concerned a football scout Mr Justice Griffiths stated: “No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution” echoing the words of the Court of Appeal in N J Rickard Limited v Holloway & Anor [2015] EWCA Civ (unreported) where the Court of Appeal observed that “no dispute was too intractable for mediation.”

DSN v Blackpool repeated the earlier observations of Sir Geoffrey Vos C in OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195 at para 39 where he stated: “The regime of sanctions and rewards has been introduced to incentivise parties to behave reasonably, and if they do not, the court's powers can be expected to be used to their disadvantage. The parties are obliged to conduct litigation collaboratively and to engage constructively in a settlement process.”

Likewise in BXB v Watch Tower [2020] EWHC 656 (QB) and Wales v CBRE Managed Services Ltd [2020] EWHC 1050 (Comm) cost sanctions were imposed for refusing and failing to mediate.

The tide is certainly turning strongly in favour of mediation as the go to platform for parties and solicitors and a number of commentators have referred to this being a watershed moment although the writing has been on the wall for some time.

PGF II was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction. In the present case, the costs sanction was severe, but not so severe that this court should intervene.”

In Thakkar v Patel [2017] EWCA Civ 117 Lord Justice Jackson at para 31 stated: “The message which this court sent out in

More sanctions for the unwary will certainly follow. It has become increasingly clear that judicial efforts to get parties to negotiate rather than litigate have moved away from the carrot towards the stick. Commentators have described it as a “relentless push towards mediation.”

Cabinet Office Guidance On 7 May 2020 the Cabinet Office issued Guidance directed at both public authorities and private enterprise as to the conduct it would expect in relation to contractual disputes in the wake of the coronavirus epidemic. Parties are specifically required to engage in “responsible and fair behaviour” which includes “requesting and responding to requests for mediation” (Para 15).

As the Directive further states at Para 17: “The Government would strongly encourage parties to seek to resolve any emerging contractual issues responsibly – through negotiation, mediation or other alternative or fast-track dispute resolution – before these escalate into formal intractable disputes.”

There is both judicial and political will to bring about a new way of doing things whether through telephone or video hearings or pro-active encouragement of negotiation and ADR. His Honour Judge Bird said that parties will be expected to “make all sensible efforts” to avoid trial. Even Lord Neuberger of Abbotsbury appeared on Radio 4’s Today programme encouraging parties to mediate. We will all have to acclimatise to change and new working practices from Remote Hearings and Virtual Justice to Online Mediation.

Coronavirus has descended upon us clothed in a cape of fear and uncertainty, disruptive, climactic, foreboding, ushering in a sea of change but also promising opportunities for transformation.

Mediation may help you shoulder the burden of client needs and expectations and move forward to a brighter and more productive future. ■

Russell Evans

Mediator Mediation Expert of the Year in the United Kingdom – GAE Award 2020 Resolve UK, Ministry of Justice approved Mediation Provider