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When is it a good time to mediate?

Our view is that the early referral of matters to mediation is a good idea in that resources which could be spent on arbitration or litigation can be spent towards resolving the dispute.

Therefore including a mediation clause in your commercial agreements which requires mediation before litigation or arbitration is very sensible.

Even without such a clause you can agree with the other party to have a mediation at any time both before or during litigation.

Most jurisdictions require at least one mediation process as part of the litigation process.

Unfortunately, without early neutral evaluation the parties are unable to properly assess their propects at trial until just before trial and hence sometimes a mediation just before trial can be effective.

Case Commentary

    • In my view this is a case which should have been referred to mediation at an early stage.
    • As I observed at the outset of this judgment, the costs are out of all proportion to what is at stake, particularly from Cropton Brewery’s perspective.
    • The legal process appears to have caused the parties to become entrenched in their positions rather than seeking common ground.
    • I suspect that the costs will themselves quickly have become an obstacle to settlement.
    • Whether the fact that Cropton Brewery has been represented under two conditional fee agreements is a factor in this I cannot say.
    • But what I can say is that in future disputes of this nature the possibility of mediation should be explored as soon as is practicable.
1) [2011] EWHC 1879 (Ch)

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