The beatings will continue until moral improves

It’s a great phrase that I’ve heard often and even used occasionally.

Whilst there is some controversy as to its origin, it’s widely agreed to be somewhat sarcastic. You can’t force (or beat) someone into being happier, harder working or more motivated.

Nevertheless, it is possible that Courts are going to start trying something not dissimilar, because a recent Court of Appeal decision has confirmed that a Court CAN force the parties to try mediation, even if either or both parties are against the idea.

In case you were thinking “well, that will never happen in reality” the powers that be have taken this decision to heart, by enacting new Alternative Dispute Resolution Rules, which confirms that courts can now force parties to try ADR. Whilst it’s still too soon to say how this might work in practice, one interesting part of the new provisions is that one party can ask the Court to order another party to mediate.

In many respects, this doesn’t really change much. I will continue to encourage people to mediate, to keep an open mind to what the other side has to say, and to be aware of how expensive litigation can be, and if you have the chance to sit around the table with the other side (literally or metaphorically) to try and settle, you should give it very serious consideration. Even if you don’t believe that a resolution will be possible, there are still two benefits. Firstly, a skilful mediator may persuade your opponent to recognise the risks and try to reach an agreement. Secondly, even if that is not possible, you can still learn a great deal from mediation which could be useful if the case continues. What’s more, if either side unreasonably refuses to mediate, that can have costs consequences for them in the end, so if you were the one willing to listen, and they weren’t, that could still work in your favour. So all the more reason to be reasonable.

So the fact that the court now has the ability to force the other side to mediate with you could be an even bigger advantage. If you do end up in trial, the trial Judge is going to know that the parties were ordered to mediate, and if that came about because of an application that you made to the court, the Judge will know that they were the ones being difficult, which could work against them in the long run.

This means that there are now even more reasons to be open to mediation.

Kleyman & Co Solicitors. The full-service law firm. Always upbeat!