I once acted for an individual, the lessee of an apartment, in a service charge dispute with the lessor. The claim, in today’s money, was for about £7,500. There was a procedural hearing. Both sides were represented by Counsel. One of them went on to become a High Court Judge; the other the Attorney General. I dealt with the lessee’s right hand man. One day I asked him. “Why does your boss carry on with this modest case? Wouldn’t he be better off playing golf?” To which the right hand man replied “to my boss, this is playing golf.”
Nowadays we have mediation. The willingness of parties to enter into mediation and their response to proposals to mediate can have an impact on who pays the costs. Here are some golden rules:
- If your opponent proposes mediation, you must respond to the request. It is unreasonable to remain silent.
- It is also unreasonable to respond to a request by dragging one’s feet.
- If the other side propose mediation it is not necessarily unreasonable to refuse to mediate. For example, in a modest case there may not be a budget for the effort and expense of a day spent mediating with no guarantee of success and the effort and expense of proceeding to a hearing. Or the claim may be a total try-on making it reasonable for the defendant to insist on going straight to a trial.
The key messages are that to remain silent in the face of an offer to mediate is unreasonable, as is the failure to get on with it where bilateral negotiations fail but mediation is obviously appropriate.
Roger Cohen is a real estate sector partner and accredited mediator at Berwin Leighton Paisner LLP