mediation checklist ...
1. Should you mediate?
Must you mediate? Consider Halsey and other current case law, and the costs risks if you do not.
6 point test extracted from recent case law:
1. Is the case inherently unsuitable? (Genuine point of law at stake, or undefended debt action)
2. Can the refusing party show that it reasonably believes it has a strong case (and is it subsequently proved right)? (Depends on facts/law in each case)
3. What previous settlement activity has there been? (If none, why not; if so, mediation may be the answer)
4. Are the likely costs of mediation disproportionate? (Length of trial and its costs v mediator fee)
5. Could mediation present a risk to the trial date? (Can be set up within a few days)
6. Can the willing party show that mediation had any reasonable prospect of success? (Success is not always settlement - outcome may include withdrawal of a case, settlement in full, honest appraisal by all parties of the risks of litigation in joint meetings and in private)
Per Halsey v Milton Keynes Hospital Trust
Other relevant cases to consider: Cable v Wireless v IBM Dunnett v Railtrack Cowl v Plymouth City Council Hurst v Leeming
Is this a dispute you want to settle? If so, then mediation is probably a sensible option.
Mediation is appropriate in nearly all cases - but there are some (rare) cases where caution is needed e.g. involving fraud or other crime, or if there is a significant imbalance of power between the parties.
Are you ready to start negotiations? Make sure you know enough about your case to be able to recognise its strengths and weaknesses so you can negotiate sensibly - this may be before or after disclosure of documents, but if before, consider the relative costs of the disclosure exercise and settling the case now.