The other side refuse to mediate, what can I do?

I have written about this question before but is one that comes up time and again. There are frustrated litigators who having recognised the benefits of personal injury mediation in appropriate cases are met with stubborn resistance from an opponent. It is not possible to say that the claimant or defendant side is the recalcitrant party – there are instances of both. Again I make it clear that there will be many personal injury cases where mediation is neither helpful nor appropriate. However, if your opponent has failed to provide a reasonable refusal to mediate then what can you do?

I have previously suggested that you apply for a so-called Ungley order after proceedings have been commenced. I have set out some of the arguments that you may wish to rely upon in support of such an application in this draft statement in support of an Ungley order which you are free to adapt for your own individual cases.

The statement relies upon important dicta of Dyson LJ from the Halsey v Milton Keynes General NHS Trust 2004 case and from a speech made by Sir Anthony Clarke, the Master of the Rolls to the Civil Mediation Council in May 2008.

Of course you may wish to mediate before proceedings are commenced. In this case you will remind your opponent of the CPR personal injury pre-action protocol which states at paragraph 2.16

The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs.

Further the parties have duties to their own clients to at least consider ADR as set out in guidance note to rule 2

When considering the options available to the client (2.02(1)(b)), if the matter relates to a dispute between your client and a third party, you should discuss whether mediation or some other alternative dispute resolution (ADR) procedure may be more appropriate than litigation, arbitration or other formal processes. There may be costs sanctions if a party refuses ADR – see Halsey v Milton Keynes NHS Trust and Steel and Joy [2004] EWCA (Civ) 576. More information may be obtained from the Law Society’s Practice Advice Service.